text:
    IN RE KAMARI C-L. ET AL.

    (AC 31327)
    Bishop, Alvord and Schaller, Js.

      Argued April 19
    officially released July 27, 2010

      Benjamin D. Hollander, for the appellant (respondent mother).

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

      Inez M. Diaz Galloza, for the minor children.

       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

BISHOP, J.

The respondent mother appeals from the judgments of the trial court finding her children, Kamari and Kamarion, neglected pursuant to General Statutes § 46b-120 (9) (B) and (C) and committing them to the custody of the petitioner, the commissioner of children and families. On appeal, the respondent claims that (1) there was insufficient evidence to support the adjudication of neglect, and (2) the court improperly ordered the children committed to the care and custody of the petitioner. In response, the petitioner claims that the respondent’s appeal should be dismissed as moot because, after the court’s adjudication of neglect and commitment of the children to the petitioner, the court denied the respondent’s motion to revoke the commitment. We conclude that the respondent’s appeal is not moot and affirm the judgments of the trial court.

The following facts and procedural histoiy are relevant to our resolution of the respondent’s appeal. Although the respondent is the mother of three children, this appeal concerns her two youngest children, Kamari and Kamarion. On May 7, 2008, the petitioner filed a neglect petition, claiming that Kamari was being denied proper care and attention and being permitted to live under conditions injurious to his well-being. On July 14, 2008, the petitioner invoked a ninety-six hour hold; see General Statutes § 17a-101g; and removed Kamari from the care and custody of the respondent and on July 16, 2008, filed an ex parte motion for an order of temporary custody of Kamari, which was granted. Following a contested hearing, the court, Graziani, J., sustained the order of temporary custody.

On September 16, 2008, three days after the respondent gave birth to her third child, Kamarion, the petitioner filed a neglect petition and an ex parte motion for an order of temporary custody regarding Kamarion on the basis of the doctrine of predictive neglect. The ex parte motion was granted, and Kamarion was removed from the care and custody of the respondent. On October 14, 2008, following a contested hearing, the court, Esposito, J., vacated the order of temporary custody regarding Kamarion. The court found that the petitioner had failed to establish that Kamarion was in immediate physical danger and returned Kamarion to the care and custody of the respondent, with whom he remained pending disposition of the neglect petition.

On February 10 and 13 and March 6, 2009, a trial was held before the court, Wilson, J., regarding the neglect petitions as to both children. The court made the following findings of fact. The respondent has a history with the department of children and families (department) that began in 2005, relating to her inability to care properly for her eldest child, Keyashia C. This prior history was relevant to the present case because the respondent’s mental health, substance abuse and transiency issues that were evidenced in the earlier termination proceeding were found by the court to have continued and to be germane to her care of her two younger children. From 2005 to 2006, the respondent was provided a number of services to help her address her issues, with the goal being to reunite her with Keyashia. Because, however, she failed to achieve a sufficient degree of personal rehabilitation in a timely fashion and failed to demonstrate that within a reasonable time she could assume a responsible position in the life of the child, her parental rights as to Keyashia were terminated. See General Statutes § 17a-112 (j) (3) (B). At the time of the termination, the court, Brown, J., noted that the respondent had a sincere desire to care for Keyashia but that she was unable to demonstrate consistent follow-through and compliance with the services. Similarly, the court, Wilson, J., in the case at hand, found that the respondent’s inability to follow through has continued to be an issue implicating her care of her two younger children.

The court found that the respondent has had difficulty maintaining stable housing. In 2007, the department referred her to the supportive housing program (program), which assisted her in obtaining a two bedroom apartment. The respondent complied with the program’s conditions for a short period of time, but by the end of 2007, she was no longer in compliance, having failed to pay her rent or utilities. In the spring of 2008, she was discharged from the program for noncompliance. From May to July, 2008, the respondent did not have stable housing, intermittently staying in a hotel and with various family members and friends. It was this homelessness and transience that led to Kamari’s removal. In August, 2008, however, after Kamari had been removed from her care and one month before Kamarion was bom, the respondent obtained a three bedroom apartment in Ansonia. As of the last day of trial, March 6, 2009, the respondent was still residing in the apartment with Kamarion, who had been living there with her since October, 2008.

A second issue of concern to the court was the respondent’s substance abuse. In July, 2008, at about the date that Kamari was removed from her care, the respondent was referred for a substance abuse evaluation, urine screen and hair toxicology screen. She did not attend the evaluation or the screenings, nor did she attend five subsequent substance abuse screenings, and she refused to submit to a hair toxicology screen. On September 25, 2008, the respondent finally agreed to submit to a hair toxicology screen and substance abuse evaluation. At that time, she admitted to using marijuana as recently as April, 2008. A urinalysis screening taken on September 25, 2008, however, tested positive for the use of marijuana. Additionally, the hair toxicology screen taken in October, 2008, revealed her use of cocaine. It also showed that the respondent had used marijuana for at least the ninety days prior to the sample collection on January 27, 2009, as evidenced by positive results for hair segments covering zero to thirty days, thirty to sixty days and sixty to ninety days prior to the date of the sample collection. Based on these results, the substance abuse testing center recommended that the respondent participate in outpatient relapse prevention services, as well as individual and group therapy. The department attempted to arrange these services for the respondent, but she repeatedly failed to show up for scheduled intake assessments. At the time of the neglect hearing, the court determined that the respondent was in denial about her drug use, “as demonstrated by her testimony that the last time she [used] drugs was in June or July, [2008].” As of the date of trial, the respondent still was not engaged in substance abuse treatment.

The court also noted that the respondent has a history of mental health issues dating back to 2005, when the department first became involved in her life. Since 2006, the respondent has received numerous services to address her mental health issues. In 2006 and 2007, she was evaluated by Michael Haymes, a court-appointed forensic psychologist. Haymes diagnosed her with mood disorder, attention deficit hyperactivity disorder and borderline personality disorder. Haymes recommended that the respondent get “back to basic” schooling to address her reading deficiencies, that she participate in group therapy, individual therapy and marriage counseling, and that she receive a full psychiatric evaluation to consider the possible use of psychotropic medications. Thereafter, the respondent was referred to social worker April Reiss for counseling in September, 2007. Reiss testified that the respondent initially came with the children’s father to address their marital problems and that after the father stopped participating in counseling, the respondent continued individually for other mental health issues until August, 2008. Reiss diagnosed the respondent with chronic depression and oppositional disorder. Reiss characterized their counseling sessions as “very erratic, continuously erratic,” and stated that they occurred more often, then less often, sometimes in person and sometimes over the telephone.

Although Reiss stated that she thought the respondent had made progress, she acknowledged that if the respondent were continuing to engage in substance abuse, “that would not be progress.” The court noted that it was unclear from Reiss’ testimony exactly what mental health goals were being pursued and whether any progress had been made toward that end. The court expressed doubt in that regard, considering evidence of the respondent’s ongoing substance abuse and her failure to engage on a consistent basis in mental health treatment. In October, 2008, the respondent was again referred for mental health treatment but refused to accept additional services. The department attempted to arrange services at a hospital closer to the respondent’s home, but she repeatedly failed to attend scheduled intake appointments. As of the date of trial, the respondent was not engaged in any mental health treatment services.

On the basis of the foregoing facts, the court found that the respondent had failed to show that she could consistently follow through with the services that she had been offered to address her substance abuse and mental health issues and that her failure to do so created a risk of harm to her children. The court determined that as of the adjudicatory date of May 7, 2008, Kamari was neglected in that he was being denied proper care and attention and was permitted to live under conditions that were injurious to his well-being. The court also found, as to Kamarion, that the petitioner had established the elements of neglect by a fair preponderance of the evidence based on the doctrine of predictive neglect. The court adjudicated the children neglected and, as to disposition, determined that it was in their best interests to be committed to the care and custody of the petitioner. This appeal followed.

Initially, we address the petitioner’s claim that the respondent’s appeal should be dismissed as moot. “Mootness implicates [the] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction .... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . 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. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary.” (Internal quotation marks omitted.) Conservation Commission v. DiMaria, 119 Conn. App. 763, 768, 989 A.2d 131 (2010).

During the pendency of this appeal, the respondent filed a motion to revoke the commitment of Kamari and Kamaiion, pursuant to General Statutes § 46b-129 (m), on the ground that cause for commitment no longer existed and that it would be in the best interests of the children to be returned to the respondent’s custody. The court, Epstein, J., denied the motion, and the respondent did not appeal. The petitioner claims, therefore, that even if we were to reverse the decision of the court, Wilson, J., on appeal, the subsequent decision by the court, Epstein, J., would still stand and would prevent this court from granting any practical relief. We disagree. In denying the respondent’s motion to revoke commitment, Judge Epstein did not confirm Judge Wilson’s previous finding of neglect or recommit the children to the petitioner. Rather, Judge Epstein simply held that the respondent had failed to demonstrate that cause for commitment no longer existed. If this court were to find in favor of the respondent, regarding either the adjudication of neglect or the commitment order, our determination would render the subsequent decision by the court, Epstein, J., a nullity, as the commitment would no longer be in effect. We conclude, therefore, that the respondent’s appeal is not moot.

Having established jurisdiction to address the respondent’s appeal, we now address the respondent’s claim that the court improperly adjudicated Kamari and Kamarion neglected. Specifically, the respondent claims that the petitioner did not present sufficient evidence to establish, under § 46b-120 (9), that Kamari was neglected and that the court improperly applied the doctrine of predictive neglect to find that Kamarion was neglected. We disagree.

Initially, we set forth our standard of review. “When considering a challenge to the sufficiency of the evidence, the function of an appellate court is to review the findings of the trial court, not to retry the case. . . . [W]e must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Citation omitted; internal quotation marks omitted.) In re Jermaine S., 86 Conn. App. 819, 829, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).

“Neglect proceedings, under ... § 46b-129, are comprised of two parts, adjudication and disposition.” In re Brianna C., 98 Conn. App. 797, 801, 912 A.2d 505 (2006). During the adjudicatory phase, the court determines if the child was neglected. Practice Book § 35a-7 (a) provides in relevant part: “In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . . .” Section 46b-120 (9) provides that a child may be found neglected if the child is “being denied proper care and attention, physically, educationally, emotionally or morally,” or is “being permitted to live under conditions, circumstances, or associations injurious to the well-being of the child or youth . . . .” “The [petitioner], pursuant to [§ 46b-120], need not wait until a child is actually harmed before intervening to protect that child. . . . This statute clearly contemplates a situation where harm could occur but has not actually occurred. Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.” (Emphasis added; internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn. App. 831. “The doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred.” In re T.K., 105 Conn. App. 502, 513, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). Thus, “[a] finding of neglect is not necessarily predicated on actual harm, but can exist when there is a potential risk of neglect. . . . The standard of proof applicable to non-permanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence.” (Citation omitted.) In re Brianna C., supra, 802.

In addressing the respondent’s claim, we must first determine whether the facts set forth in the court’s memorandum of decision are supported by the evidence. Although the respondent makes the sweeping assertion that the court’s factual findings were clearly erroneous, she does not identify a single factual conclusion in the court’s memorandum of decision as being erroneous. Rather, by making a wholesale assault on the court’s decision, the respondent appears to be asking this court to reweigh the evidence that was presented to the trial court. This we will not do, as it is not the function of a court of review to retry the facts. See Lederle v. Spivey, 113 Conn. App. 177, 190, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009). On the basis of our independent review of the record, we conclude that the court’s factual findings were not clearly erroneous.

We next assess whether the facts properly found by the court were sufficient to support its neglect determination. The respondent’s insufficiency claim is premised, in part, on her assertion that the court should not have considered this to be a case of predictive neglect as to Kamarion. The respondent notes that because Kamarion was only three days old and still in the hospital when the petitioner filed the neglect petition in September, 2008, the child was never in the respondent’s custody. Therefore, the respondent points out, the only basis on which the petitioner could allege neglect was predictive. She argues, however, that because she resumed custody of Kamarion from October, 2008, until July, 2009, after the petition had been filed, and that during that time there was no evidence of neglect, it was inappropriate for the court to apply the doctrine of predictive neglect. Essentially, she claims that it is inconsistent to find neglect based on a prediction, when there was actual evidence showing a lack of neglect while Kamarion was in her care subsequent to the filing of the petition. The respondent’s argument ignores Practice Book § 35a-7 (a). As noted previously, during the adjudicatory phase, “the judicial authority is limited to evidence of events preceding the filing of the petition . . . .” Practice Book § 35a-7 (a). Accordingly, the court properly determined that any evidence of sound parenting, or lack thereof, that occurred after the filing of the neglect petition relating to Kamarion, was not relevant to the adjudication stage of the neglect proceeding.

Upon a careful review of the court’s memorandum of decision, we find substantial evidence to support the court’s finding of neglect as to both children and its commitment of the children to the petitioner. As of May 7, 2008, the date that the petitioner filed its neglect petition as to Kamari, the respondent had had an extensive history with the petitioner arising from her inability to care for her eldest child, Keyashia. The similarity between the respondent’s parenting issues in 2005 and those present in 2008 evinced a lack of rehabilitation as to her mental health issues and a persistent lack of stable housing. The court heard evidence, which it was entitled to credit, that the respondent had failed to accept consistently state services to address those issues. In May, 2008, the respondent did not have housing, having failed to pay her rent or utilities at what was then her most recent apartment. She was dismissed from the special housing program, which was the only reason she had an apartment to begin with, due to her failure to comply with the program’s conditions. There was evidence that the respondent had mental health issues, which she had not dealt with effectively. From March to May, 2008, the respondent had ceased attending individual counseling sessions with Reiss, and there was no evidence that the respondent had attempted to engage in any of the numerous other treatments that were recommended by Haymes. Haymes testified about the respondent’s emotional instability, inability to maintain a healthy relationship and the significant risk she posed to her children. On the basis of the foregoing facts, we conclude that there was sufficient evidence for the court to have found by a preponderance of the evidence that Kamari had been, and was at risk of being, denied proper care and attention and was permitted to live under conditions that were iryurious to his well-being.

Regarding Kamarion, in September, 2008, when the petitioner filed the neglect petition pertaining to him, there existed the same evidence regarding the respondent that had been available in May, 2008, regarding the respondent’s inability to care for Keyashia properly. This need not be repeated in detail, but, as noted previously, it entailed a long history of mental health issues that had not been consistently or sufficiently addressed by the respondent and a lack of stable housing. In August, 2008, the respondent stopped going to Reiss for counseling and did not engage in any other mental health treatment. From May to July, 2008, the respondent was homeless, at times staying in a hotel or with various friends and family members. Additionally, by September, 2008, there was evidence that the respondent was engaged in substance abuse. She admitted to having smoked marijuana while she was pregnant with Kamarion, as well as having used ecstasy on one occasion. Accordingly, we conclude that there was sufficient evidence for the court to have found that the respondent’s pattern of behavior and inability to achieve personal rehabilitation created a potential risk of harm to Kamarion, and that the court properly determined that Kamarion was neglected based on the doctrine of predictive neglect.

Moving from the adjudication of neglect to the court’s disposition, the respondent and the children next claim that the court improperly committed Kamari and Kama-rion to the care and custody of the petitioner. Specifically, they claim that there was insufficient evidence presented to support the court’s conclusion that it was in the best interests of the children that they be committed to the custody of the petitioner. We disagree.

The second phase of a neglect proceeding is the dis-positional phase. Section 46b-129 (j) provides in relevant part that “[u]pon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. . . .” “In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of [the child’s] environment.” (Internal quotation marks omitted.) In re Brianna C., supra, 98 Conn. App. 804.

“We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) In re Karl J., 110 Conn. App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954, 961 A.2d 420 (2008). “At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child’s best interest to be committed to the commissioner rather than to remain with the respondent.” In re Brianna C., supra, 98 Conn. App. 804. On appeal, we must determine whether there was sufficient evidence before the court so that it reasonably could have found, by a fair preponderance of the evidence, that the best interests of the children were to commit them to the custody of the petitioner. See id.

Upon a careful review of the record, we find sufficient evidence for the court to have concluded that it was in the best interests of Kamari and Kamarion that they be placed in the custody of the petitioner. As noted, the respondent has a history of mental health issues and substance abuse. It serves no useful purpose to repeat the court’s specific findings as to these issues except to note that as of the time of trial, the court had observed that the respondent’s mental health and substance abuse issues still were not being addressed, a significant finding implicating the best interests of the children.

As to the respondent’s claim that she had stabilized her housing in August, 2008, and continued to reside in that apartment at the time of the neglect hearing, the court fairly noted that this positive step was insufficient to eclipse its concerns for the well-being of Kamari and Kamarion, and the respondent’s ability to care for these children based on her persistent failure to engage in treatment for her substance abuse and mental health issues. In sum, we conclude that the court reasonably could have found, on the basis of a fair preponderance of the evidence, that it was in the best interests of Kamari and Kamarion that they be committed to the care and custody of the petitioner.

The judgments are affirmed.

In this opinion the other judges concurred.

       The respondent father of the two minor children at issue in this appeal also was named in the neglect petitions that commenced this case. Because he has not appealed, we refer in this opinion to the respondent mother as the respondent.

       We note that § 46b-120 was amended by Public Acts, Spec. Sess., June, 2007, No. 07-04, § 73, which took effect January 1, 2010. The act did not change any substantive language regarding the definition of “neglect”; however, the subdivision in which the definition is located changed from subdivision (9) to subdivision (8). References in this opinion to § 46b-120 (9) are to the revision of the statute that was applicable prior to the 2007 amendments.

       The attorney for the minor children also filed a brief in this appeal. Counsel for the children does not dispute the neglect finding but challenges the court’s commitment of the children to the care and custody of the petitioner. The claims asserted by the attorney for the minor children will be discussed in conjunction with those made by the respondent.

       Although this appeal concerns only Kamari and Kamarion, the trial court took judicial notice of the facts pertaining to a prior termination of parental rights proceeding concerning the respondent’s eldest child, Keyashia C. On August, 5, 2008, the respondent’s parental rights as to Keyashia were terminated; the respondent appealed, and this court affirmed the judgment of the trial court. See In re Keyashia C., 120 Conn. App. 452, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).

       The father did not appear for any of the proceedings. He was defaulted on the neglect petitions regarding Kamari and Kamarion on June 11 and October 29, 2008, respectively.

       The memorandum of decision dated July 20,2009, mistakenly states that the trial took place only on February 13, 2009, and March 6, 2009.

       The court noted that the purpose of the supportive housing program is “the preservation and reunification of families,” and that the program assists families with organizing their finances, helping them pay their rent, utilities and food bills, and assisting them with treatment providers.

       Although the court made note in its memorandum of decision that both children were neglected on the basis of the doctrine of predictive neglect, it is clear from the court’s analysis that it addressed the neglect claim, as to Kamari, as entailing actual neglect.

       General Statutes § 46b-129 (m) provides: “The commissioner, a parent or the child’s attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months.”

       General Statutes § 46b-120 (9) provides in relevant part: “[A] child or youth may be found ‘neglected’ who (A) has been abandoned, or (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth, or (D) has been abused . . .

       As an aside to the respondent’s claim, she asserts that the court improperly admitted the testimony of Haymes, testimony she claims was irrelevant and hearsay that was not within a recognized exception to the rule against hearsay. This claim is briefed inadequately and we do not address it. “We are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond abare assertion of the claim, it is deemed to have been waived. ... In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice.” (Internal quotation marks omitted.) Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 437 n.4, 994 A.2d 1270 (2010).

       The respondent appears to claim that the court should have given greater weight to the testimony of Reiss and less weight to that of Haymes and Kelly Thibault, a department social worker. Weighing of evidence is, of course, the function of the trier of facts and not that of a court of review.

       The respondent states in her brief that she does not concede that there was sufficient evidence presented to justify the neglect adjudication as to Kamari; however, that assertion begins and ends any discussion of the evidence relating to Kamari.

       The children also argue that the court failed to apply the appropriate legal standard for determining what was in their best interests. Specifically, counsel for the children, relying on In re Juvenile Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983), argues that the court failed to apply the proper balancing test, which involves weighing the children’s safety interest against the “parent’s and child’s combined fundamental right to family integrity.” We agree with the petitioner that In re Juvenile Appeal (83-CD) is not controlling in this case. That case pertained to an emergency removal, but the case at hand concerns the determination of the proper placement of children after they already have been deemed neglected. Further, the court clearly indicated that it followed the dictate of § 46b-129 (j) by evaluating “which of the various custody alternatives [was] in the best interest of the child[ren].” In re Brianna C., supra, 98 Conn. App. 804. Additionally, the court’s analysis necessarily involved a weighing of interests, as evidenced by its clearly articulated consideration of whether it was in the “child[ren]’s best interest to be committed to the commissioner rather than to remain with the respondent.” Id. Thus, we find no merit to the children’s claim that the court failed to apply the appropriate legal standard in making its dispositional decision.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    IN RE PRISCILLA A.

    (AC 31158)
    Robinson, Bear and Borden, Js.
    Argued May 20
    officially released July 27, 2010

      Lindsey B. Guerrero, deputy assistant public defender, with whom, on the brief, was James J. Connolly, assistant public defender, for the appellant (respondent).

      Gregory T. DAuria, senior appellate counsel, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

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

   Opinion

BORDEN, J.

The respondent, Priscilla A., appeals following an order of the trial court granting the motion of the petitioner, the commissioner of children and families (commissioner), to extend her delinquency commitment an additional six months. On appeal, the respondent claims that, pursuant to General Statutes § 52-434 (a), the judge trial referee who issued the order determined improperly that he had the authority to adjudicate the juvenile matter without her consent. We dismiss the appeal as moot.

The following facts and procedural history are not in dispute. In 2008, the respondent was adjudicated a delinquent and committed to the custody of the commissioner for a period of up to twelve months. On May 29, 2009, prior to the expiration of the commitment, the commissioner filed a motion to extend the respondent’s delinquency commitment for an additional twelve months. The respondent opposed the extension, and on June 1, 2009, filed a notice of opposition to the commissioner’s motion for extension and further requested a full evidentiary hearing on the matter.

On June 3,2009, the court, Dannehy, J., scheduled the respondent’s requested hearing before Hon. William L. Wollenberg, judge trial referee. That same day, the respondent filed a “Notice of Opposition to Appointment of State Trial Referee,” in which she notified the court of her intention to oppose the assignment of the matter to a judge trial referee. In a subsequently filed supporting memorandum of law, the respondent claimed that, pursuant to § 52-434 (a) (3), a juvenile matter may be referred to a judge trial referee only upon obtaining the written consent of the concerned child.

On June 15, 2009, Judge Wollenberg conducted a hearing on the commissioner’s motion for extension of the respondent’s delinquency commitment. At the outset, the respondent renewed her objection to Judge Wollenberg’s authority, as a judge trial referee, to adjudicate the juvenile matter absent her consent. Judge Wollenberg responded that § 52-434 (a) (3) only applies to former judges of the Juvenile Court, that he was not a former judge of the Juvenile Court but instead was a former judge of the Superior Court, and, therefore, the statute did not apply. The court, accordingly, overruled the objection and thereafter ordered, pursuant to an agreement of the parties, that the respondent’s delinquency commitment be extended six: months, to conclude on January 1, 2010. This appeal followed.

On appeal, the respondent challenges the appointment of the judge trial referee to adjudicate her juvenile matter in the absence of her consent. Because the respondent’s delinquency commitment expired on January 1, 2010, and there have been no requests for a further extension of her commitment, the parties each concede that no practical relief can be afforded by this court and, therefore, the respondent’s appeal is moot. This does not end our analysis, however, because the respondent contends that her claim qualifies for review under the “capable of repetition, yet evading review” exception to the mootness doctrine. We disagree.

“Mootness implicates a court’s subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review. . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute .... [T]he requirement of an actual controversy ... is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law.” (Citations omitted; internal quotation marks omitted.) State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008).

An otherwise moot question may qualify for review under the well established “capable of repetition, yet evading review” exception to the mootness doctrine. See Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). In Loisel, our Supreme Court set forth three requirements that an otherwise moot question must satisfy in order to qualify for review under this exception. “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Id., 382-83.

“The first element in the analysis pertains to the length of the challenged action. . . . The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.” (Citations omitted.) Id., 383-84. “[A] party typically satisfies this prong if there exists a ‘functionally insurmountable time [constraint]’ Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 367, 957 A.2d 821 (2008); or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 233 Conn. 383.

With these principles in mind, we address the respondent’s claim that her appeal falls within the “capable of repetition, yet evading review” exception to the mootness doctrine. The respondent, in order to establish the first requirement of Loisel, presents a statistical summary of Connecticut delinquency cases that tends to demonstrate that almost all delinquency dispositions are of a limited lifespan. This data suggests that 86 percent of delinquency cases are disposed of by short-term probation and 12 percent result in commitments to the commissioner of eighteen months or less. The respondent contends that because 98 percent of juvenile delinquency cases result in commitments of eighteen months or less, the challenged action is therefore of such an inherently limited duration that a substantial majority of questions concerning its validity will become moot before reaching the appellate stage of litigation. See In re Fabian A., 106 Conn. App. 151, 156, 941 A.2d 411 (2008) (challenged action limited to eighteen months is of limited duration). This argument, however, misconstrues the particular action that the respondent is challenging on appeal.

Although this appeal arises from a juvenile placement determination, the respondent is not directly challenging the extension of her delinquency commitment. She instead is challenging the statutoxy authority of a judge trial referee to adjudicate her juvenile matter. As set forth previously, she contends that, pursuant to § 52-434 (a) (3), written consent of the concerned child is a required prerequisite to the appointment of a judge trial referee to adjudicate a juvenile proceeding. She claims that because she did not give her written consent in this case, the court improperly appointed a judge trial referee to adjudicate her delinquency commitment proceeding. The language of § 52-434 (a) (3), however, is not limited to delinquency dispositions but instead broadly addresses the appointment of a state referee to “any juvenile matter pending.” Clearly, then, the contours of the statute could be implicated in civil juvenile matters that are separate and apart from delinquency commitment determinations, including neglect and termination of parental rights proceedings.

The respondent’s brief is bereft of any support for the. proposition that all juvenile matters assigned to judge trial referees are by their very nature of so limited a duration that a substantial majority of cases challenging their validity will become moot before appellate litigation can be concluded. A fundamental requirement for the application of the mootness exception propounded by the respondent is that the challenged action is strongly likely to evade appellate review in future cases. See In re Melody L., 290 Conn. 131, 172, 962 A.2d 81 (2009); Loisel v. Rowe, supra, 233 Conn. 382. Because the respondent has failed to demonstrate that the substantial majority of appeals involving the authority of judge trial referees to adjudicate juvenile matters pursuant to § 52-434 (a) (3) will become moot prior to appellate resolution, we conclude that the first prong of our “capable of repetition, yet evading review” exception to the mootness doctrine is not satisfied. Having reached this conclusion, we need not address the two remaining requirements of this exception and must dismiss the appeal for lack of subject matter jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-434 (a) (3) provides: “Each judge of the Juvenile Court who ceases or has ceased to hold office because of retirement other than under the provisions of section 51-49 and who is an elector and a resident of this state shall be a state referee for the remainder of such judge’s term of office as a judge and shall be eligible for appointment as a state referee during the remainder of such judge’s life in the manner prescribed by law for the appointment of a judge of the court of which such judge is a member, to whom a judge before whom any juvenile matter is pending may, with the written consent of the child concerned, either of such child’s parents, or such child’s guardian or attorney, refer any juvenile matter pending, provided such referee has been appointed a judge trial referee specifically designated to hear juvenile cases pursuant to subsection (b) of this section. The judge trial referee shall hear any matter so referred and report the facts to the court for the district from which the matter was referred.” (Emphasis added.)

       The following colloquy occurred between the court and counsel for the respondent:
      “[The Respondent’s Counsel]: I’m not opposed to [the court] hearing an agreement [between the parties] going forward; my concern only is the reading of [§ 52-434 (a) (3)]. It appears to limit the court’s ability to enter the [commitment] order. . . .
      “The Court: State referees?
      “[The Respondent’s Counsel]: Correct. . . .
      “The Court: But I’m not a state referee.
      “[The Respondent’s Counsel]: A judge trial referee?
      “The Court: I’m a state trial referee.
      “[The Respondent’s Counsel]: Correct. That’s the statute I’m referring to. . . .
      “The Court: [Section 52-434 (a) (3)] [rjefers to juvenile judges .... I never was a juvenile judge.”

       See Lyon v. Jones, 291 Conn. 384, 393-94, 968 A.2d 416 (2009) (“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. . . . [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.” [Citations omitted; internal quotation marks omitted.]).

       By contrast, the appellant in In re Fabian A., supra, 106 Conn. App. 152, on which the respondent relies, directly challenged the trial court’s granting of a motion to extend his delinquency commitment for an additional nine months.

       General Statutes § 46b-121 (a) (1) defines the term juvenile matters to include not only delinquency proceedings, but also “all proceedings concerning uncared-for, neglected or dependent children and youths within this state, termination of parental rights of children committed to a state agency, matters concerning families with service needs, contested matters involving termination of parental rights or removal of guardian transferred from the Probate Court and the emancipation of minors . . . .”
      Although § 46b-121 was amended by Public Acts, Spec. Sess., June, 2007, No. 07-04, § 74, which took effect January 1, 2010, those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.


author: Per Curiam.

text:
    CORINE CARR v. CONNEX CREDIT UNION
    (AC 31153)
    Harper, Lavine and Beach, Js.
    Submitted on briefs January 8
    officially released June 29, 2010
   Per Curiam.

The judgment is affirmed.


text:
    HERBERT JACKSON v. COMMISSIONER OF CORRECTION
    (AC 30680)
    Lavine, Alvord and Bear, Js.
    Submitted on briefs May 26
    officially released June 29, 2010
   Per Curiam.

The appeal is dismissed.


text:
    CITIBANK (SOUTH DAKOTA) N.A. v. RICHARD M. FARINA
    (AC 31635)
    DiPentima, C. J., and Bear and Schaller, Js.
    Argued June 1
    officially released June 29, 2010
   Per Curiam.

The judgment is affirmed.


text:
    GENO PIACENTINI ET AL. v. JOANN PIACENTINI
    (AC 31273)
    Robinson, Alvord and Pellegrino, Js.
    Argued June 2
    officially released June 29, 2010
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DENNIS R. ROSS
    (AC 31136)
    Robinson, Bear and Mihalakos, Js.
    Argued June 4
    officially released June 29, 2010
   Per Curiam.

The judgment is affirmed.


text:
    WELLS FARGO BANK, N.A. v. PATRICIA A. BRACA ET AL.
    (AC 31325)
    Harper, Robinson and Borden, Js.
    Argued April 7
    officially released July 13, 2010
   Per Curiam.

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


text:
    IN RE DAIRRAH D. ET AL.
    (AC 30852)
    Bishop, Gruendel and Laveiy, Js.
    Argued May 27
    officially released July 13, 2010
   Per Curiam.

The judgments are affirmed.


author: FLYNN, C. J.

text:
    LLOYD WRIGHT v. TEAMSTERS LOCAL 559
    (AC 30803)
    Flynn, C. J., and Bishop and Alvord, Js.

      Submitted on briefs January 8
    officially released August 3, 2010

      Kelly A. Rommel filed a brief for the appellant (plaintiff).

      Nicole M. Rothgeb and Gregg D. Adler filed a brief for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The plaintiff, Lloyd Wright, appeals from the judgment of the trial court dismissing his complaint against the defendant, Teamsters Local 559, for lack of subject matter jurisdiction. The plaintiff claims that the court improperly dismissed his complaint as time barred by the two year statute of limitations set forth in General Statutes § 46&-102. The plaintiff argues that, because the date of his amended complaint should be the controlling date for determining the applicability of the statute of limitations, his action was timely. Because we conclude that his Superior Court complaint was untimely and that it became no more timely as a result of an amendment to the complaint he initially had filed with the commission on human rights and opportunities (commission), we affirm the judgment of the trial court.

The record discloses the following facts. The plaintiff is African-American and a longtime member of the defendant union, Teamsters Local 559. On May 18,2004, the defendant removed the plaintiff from his position as a union steward when the members of his bargaining unit voted to replace him with another member, who is a Caucasian male. On October 12, 2004, the plaintiff filed a complaint with the commission, alleging that he was the victim of race and color discrimination. Almost one and one-half years later, on April 4, 2006, the plaintiff amended his original commission complaint to add a claim of age discrimination. The plaintiff alleged that he was over the age of forty and that the man who replaced him was much younger. On August 28, 2006, the plaintiff received a release of jurisdiction from the commission. Thereafter, on November 28,2006, he commenced an action in Superior Court. On February 7, 2007, the plaintiff revised his complaint at the defendant’s request.

On September 30, 2008, the defendant filed a motion to dismiss, arguing that the plaintiff first filed his administrative complaint with the commission on October 12, 2004, that the action was not commenced in the Superior Court until November 28,2006, and that it therefore was barred by the two year statute of limitations found in § 46a-102. The court granted the defendant’s motion to dismiss for lack of subject matter jurisdiction. This appeal followed.

The plaintiff argues that because he amended his commission complaint to add new allegations of age discrimination, the April 4, 2006 date of the amended commission complaint should be the controlling date for purposes of determining the applicability of the two year statute of limitations set forth in § 46a-102. This distinction is important because the original complaint was filed with the commission on October 12, 2004, more than two years before this action was filed in the Superior Court on November 28, 2006. The amended commission complaint, however, was filed on April 4, 2006, within two years of the commencement of the present Superior Court action. The plaintiff contends that because the plain language of § 46a-102 does not require dismissal when amended commission complaints are involved and also because case law does not require such a result, his action is not time barred. We are not persuaded.

The standard of review concerning an appeal from the granting of a motion to dismiss is well established. “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Whether the trial court has subject matter jurisdiction is a question of law over which we exercise a plenary standard of review.” (Citation omitted; internal quotation marks omitted.) Mulcahy v. Mossa, 89 Conn. App. 115, 120, 872 A.2d 453, cert, denied, 274 Conn. 917, 879 A.2d 894 (2005). The plaintiffs claim involves the proper application of § 46a-102, and because statutory construction is a question of law, our review of the court’s application of the statute is plenary. See id., 120-21.

The plaintiffs claim requires us to construe § 46a-102 and, thus, presents an issue of statutoiy interpretation. “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.

Section 46a-102 provides in relevant part: “Any action brought in accordance with section 46a-100 [which provides a cause of action under Connecticut antidiscrimination law] shall be brought within two years of the date of filing of the complaint with the commission . . . .” (Emphasis added.) The language of § 46a-102 is unambiguous, and we, therefore, need not look beyond the plain language of the statute. Section 46a-102 requires a plaintiff to file his or her action in the Superior Court within two years of filing a commission complaint, and the statute of limitations contained in that section is not extended by filing later amendments to the commission complaint.

The question before the court was not whether the Superior Court complaint was timely filed under § 46a-102 when using the original commission complaint to start the running of the statute of limitations, but, rather, whether the plaintiffs allegation of age discrimination, raised for the first time in the amended commission complaint, related back to his original commission complaint under the relation back doctrine and, if not, whether this amendment extended the statutory time to bring the action in the Superior Court pursuant to § 46a-102. The plaintiff claims that the allegation of age discrimination was a new, factual allegation not contained in the original commission complaint and that it was made within two years of filing his Superior Court complaint, therefore rendering the court action timely. We disagree with the plaintiff.

In reviewing whether the court properly concluded that the relation back doctrine applied to the amended commission complaint, we look to our well established common-law rules governing that doctrine established by our courts. “[I]t is well settled that an amended complaint relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action. . . . Thus, an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently.” (Citation omitted.) Miller v. Fishman, 102 Conn. App. 286, 298, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008).

We also find our Supreme Court’s reasoning in a negligence case instructive as to how amendments to complaints brought within the statute of limitations relate back to the original complaint. “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated. . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . .” (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).

The defendant argues, and the court found, that the allegations of age discrimination amplify and expand what already had been alleged in support of the plaintiffs discrimination claim. We agree. In this case, the relation back doctrine applied because the allegations of age discrimination involved the same set of facts, actors, claims of harm and injury, and also the same statutory provision, § 46a-102. See id. Like the race and color claims in the first commission complaint, the allegations of age discrimination stemmed from the defendant’s replacement of the plaintiff during the May 18, 2004 steward election and its alleged representation of him on prior occasions.

Section 46a-54-38a (b) of the Regulations of Connecticut State Agencies (commission regulation) mirrors our common law and directly addresses the issue before us. It provides: “A complaint may be amended to restate its contents on a commission complaint form to cure technical defects and omissions or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts that constitute discriminatory practices which are reasonably like or related to or growing out of the allegations of the original complaint, including those facts discovered during the investigation of the original complaint, and including additional protected class status or naming additional respondents who have had notice of the complaint, relate back to the date the complaint was first received.” (Emphasis added.) Regs., Conn. State Agencies § 46a-54-38a (b).

General Statutes § 46a-54 (5) provides the commission with the power “[t]o adopt, publish, amend and rescind regulations consistent with and to effectuate the provisions of this chapter . . . .” Furthermore, “[regulations have the force and effect of statutes and are construed in accordance with accepted rules of statutory construction.” Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 65-66, 592 A.2d 964 (1991), aff'd, 222 Conn. 269, 610 A.2d 584 (1992); see also Commission on Hospitals & Health Care v. Stamford Hospital, 208 Conn. 663, 668, 546 A.2d 257 (1988) (“validly enacted regulations of an administrative agency carry the force of statutory law”). Because the plain language of the commission regulation states that an amended complaint “including additional protected class status . . . relate [s] back to the date the complaint was first received”; Regs., Conn. State Agencies § 46a-54-38a (b); there can be no doubt in this case that the allegations of age discrimination relate back to the race and color allegations in the original commission complaint.

Furthermore, the defendant argues that the plaintiffs amended complaint was dismissed properly for lack of subject matter jurisdiction. The defendant argues that because the plaintiff first filed his administrative complaint with the commission on October 12, 2004, and the present action was not commenced in the Superior Court until November 28, 2006, the action in the Superior Court was barred by the two year statute of limitations found in § 46a-102 and should be dismissed. We agree that the court properly dismissed the action. We need not address, however, whether the plaintiffs failure to bring the action within two years of the filing of his complaint with the commission deprived the court of subject matter jurisdiction. In light of our determinations that the plaintiff does not dispute that the two year provision in § 46a-102 is mandatory and also that he failed to comply with that provision, the court properly dismissed the action in the absence of any claim of waiver, consent or equitable tolling. See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 284, 777 A.2d 645, affd after remand, 67 Conn. App. 316, 786 A.2d 1283 (2001).

On the basis of our review of the pleadings and the law, we conclude that the plaintiffs Superior Court complaint was untimely. Because we determined that the plaintiffs amended commission complaint and the allegations of age discrimination relate back to the date of the original commission complaint and also that the plaintiff failed to bring his action in the Superior Court within two years of the filing of his complaint with the commission pursuant to § 46a-102, we conclude that the court properly dismissed the plaintiffs action.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-102 provides: “Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission, except that an action may be brought within six months of October 1, 1991, with respect to an alleged violation provided a complaint concerning such violation has been pending with the commission for more than one year as of October 1, 1991, unless the complaint has been scheduled for a hearing.”

       The plaintiff also listed other actions that he claims the defendant and its Caucasian business manager, Thomas Gilmartin, took against him in the years prior to the May 18, 2004 vote. He contends that all of these claims were motivated by race or age animus.

       The revised complaint before the court alleged violations of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. Specifically, it was brought pursuant to General Statutes § 46a-60 (a), which provides in relevant part: “It shall be a discriminatory practice in violation of this section ... (3) [f]or a labor organization, because of the race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification . . . .”

       The plaintiff does not dispute that § 46a-102 required him to file his complaint in the Superior Court within two years of filing his administrative complaint with the commission. The plaintiff, however, argues that this time limitation does not apply in this case because he amended his complaint with the commission, which reset the statute of limitations.


author: DiPENTIMA, C. J.

text:
    NABIL S. BAHJAT ET AL. v. AHMED A. DADI
    (AC 30252)
    DiPentima, C. J., and Gruendel and McDonald, Js.
    Argued April 6
    officially released August 3, 2010

      John A. Barbieri, with whom was Claudia Barbieri, for the appellants-appellees (plaintiffs).

      Ahmed A. Dadi, pro se, the appellee-appellant (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiffs, Nabil S. Bahjat and Barbara Bahjat, appeal from the judgment of the trial court, rendered after a court trial, in favor of the defendant Ahmed A. Dadi on counts two and three of the operative complaint. The plaintiffs claim that the court improperly (1) found that the defendant was exempt from the registration requirement for home improvement contractors pursuant to General Statutes § 20-420, and (2) failed to award damages to the plaintiffs pursuant to General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), and General Statutes § 20-418 et seq., the Home Improvement Act (act). The defendant cross appeals from the judgment rendered in favor of the plaintiffs on count one of their complaint, claiming that the court improperly awarded the plaintiffs damages for breach of contract. We affirm the judgment of the trial court.

The following facts and procedural history were found by the court. In 2002, the plaintiffs met with the defendant, a licensed professional engineer, and asked him to draft plans for an addition to their existing house, consisting of a garage and a second floor room over the garage. After the plans were drafted, the plaintiffs hired the defendant to apply to the town of Farmington for a building permit and to obtain the necessary side yard variances. Subsequently, the plaintiffs negotiated with the defendant to have the addition constructed. The defendant drew up a contract, which he and Nabil Bahjat executed on December 23, 2002. The contract contained, inter alia, a minimum price of $60,000, a payment schedule and a completion date of April 30, 2003.

As of May 6, 2003, the plaintiffs had made payments to the defendant totaling $43,500, and the foundation had not yet been completed. On August 16, 2003, the first delivery of framing materials arrived. By early October, 2003, when the framing and underlayment was in place, subcontractors and materials providers informed the plaintiffs that they had not been paid by the defendant and would not proceed with construction until they were paid. The plaintiffs then informed the defendant that they would take over the payments to the subcontractors and materials providers directly and would also deal with them directly to keep construction moving along. Thereafter, the plaintiffs made no further payments to the defendant but made payments totaling $29,425 directly to the subcontractors and materials providers.

The plaintiffs brought an action against the defendant, alleging breach of contract and violations of CUTPA and the act. The plaintiffs claimed that the defendant’s failure to complete the construction by the contract completion date of April 30, 2003, and his fail-rue to pay the subcontractors and materials suppliers constituted a substantial breach of the parties’ contract, resulting in monetary damages. On May 1, 2007, the defendant filed an answer and counterclaim, alleging that the plaintiffs breached the contract by failing to pay the remaining balance of the contract.

Following a trial before the court, the court issued a memorandum of decision, rendering judgment in favor of the plaintiffs on count one of their complaint for breach of contract and awarding damages in the amount of $12,925 plus court costs. The court also rendered judgment in favor of the plaintiff on all counts of the defendant’s counterclaim. The court found that “no evidence was presented to support the defendant’s argument that he performed additional services beyond what was called for in the contract, nor additional services beneficial to the plaintiffs at their request after [they] took over the completion of the contract.” On counts two and three, alleging violations of CUTPA and the act, the court rendered judgment in favor of the defendant after having found him to be exempt from the registration requirement of § 20-420 on the basis of his registration and qualifications as a professional engineer.

The plaintiffs appealed from the judgment on counts two and three of their complaint, and the defendant cross appealed from the judgment on count one of the plaintiffs’ complaint and on the counterclaim. Additional facts will be set forth where necessary.

I

The plaintiffs first claim that the court improperly found that the defendant was exempt from the registration requirement at § 20-420 for home improvement contractors. We do not agree.

Before addressing the merits of the plaintiffs’ claim, we first determine the applicable standard of review. The issue of whether a home improvement service provider is acting as a contractor is a question of fact. See Meadows v. Higgins, 249 Conn. 155, 171-72, 733 A.2d 172 (1999). “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. ... 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. ... In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 436-37, 845 A.2d 382 (2004).

Section 20-420 (a) provides in relevant part: “No person shall hold himself or herself out to be a contractor or salesperson without first obtaining a certificate of registration from the commissioner as provided in this chapter. . . .’’The court rendered judgment in favor of the defendant on counts two and three of the complaint, finding that he was exempt from the registration requirement of § 20-420 because he is registered as a professional engineer.

General Statutes § 20-428 fists exemptions from registration as a home improvement contractor under the act. It provides in relevant part: “This chapter shall not apply to any of the following persons or organizations . . . (4) any person holding a current professional or occupational license issued pursuant to the general statutes . . . provided such person engages only in that work for which such person is licensed . . . .”

A professional engineer is statutorily defined as “a person who is qualified by reason of his knowledge of mathematics, the physical sciences, and the principles of engineering, acquired by professional education and practical experience, to engage in engineering practice, including rendering or offering to render to clients any professional service such as consultation, investigation, evaluation, planning, design or responsible supervision of construction, in connection with any public or privately-owned structures, buildings, machines, equipment, processes, works or projects in which the public welfare or the safeguarding of life, public health or property is concerned or involved . . . .” (Emphasis added.) General Statutes § 20-299 (1).

The plaintiffs claim that the work that the defendant did on their property does not fall within his licensing as a professional engineer. They assert that his work in this case required different skills and expertise than his engineer license reasonably contemplated, and, therefore, his work on their property should fall outside of the exemption and require that he seek an additional registration as a home improvement contractor. We are not persuaded. The defendant testified that he is a civil, mechanical and electrical engineer who has been licensed with the state as a professional engineer since 1970. He also testified that this license qualifies him to do civil, mechanical, electrical and up to 5000 square feet of architectural work on the basis of his experience and qualifications. The defendant and the plaintiffs agree that the size of the addition was well below 5000 square feet. The defendant testified that he previously had supervised construction similar to that done in this case in his capacity as a professional engineer. He further testified specifically regarding his level of involvement in the drafting of plans, construction and supervision of construction.

We conclude that the court’s finding that the defendant acted as a licensed professional engineer in drawing up the plans and responsibly supervising construction for the addition to the plaintiffs’ house was not clearly erroneous. Consequently, the plaintiffs cannot prevail on their claim alleging a violation of the act because the act is inapplicable to licensed professional engineers such as the defendant. General Statutes § 20-428. Additionally, on the basis of the inapplicability of the act, the plaintiffs’ CUTPA claim must fail because that claim is predicated entirely on the defendant’s alleged violation of the act. See MJM Landscaping, Inc. v. Lorant, supra, 268 Conn. 440.

II

Next, we address the defendant’s cross appeal, claiming that the court improperly awarded the plaintiffs damages for breach of contract. The defendant asserts that the court’s findings that the defendant was in substantial breach of the parties’ contract and that the plaintiffs made payments totaling $29,425 directly to the subcontractors and materials suppliers to complete the construction, were contrary to the evidence. We do not agree.

As we previously stated, under the applicable standard of review, we uphold factual findings unless they are clearly erroneous. Id., 436-37. The court found that “the contract was in effect, and the plaintiffs made the various payments as requested by the defendant, amounting to $43,500 through May 6, 2003. The work on the addition moved at an extremely slow pace [despite] efforts on the part of the plaintiffs to have the defendant move the construction along. As of May 6, 2003, the foundation work was not completed; the first delivery of framing materials to the job site was August 16,2003. By early October, 2003, the framing and underlayment was in place when the subcontractors informed the plaintiffs that they were not being paid by the defendant and would not proceed with construction until they were paid. Other nonpayment issues arose with the material providers, and one placed a lien on the plaintiffs’ property. The plaintiffs then informed the defendant that they would take over the payments directly to the subcontractors and materials suppliers and would deal directly with them to keep the construction proceeding.” The court further found that as of October 1, 2003, “[substantial construction work remained to be completed, and the work had stopped because of the defendant’s nonpayment to workers and suppliers. This was a substantial breach of the parties’ contract.” The court determined, on the basis of the evidence of payments and construction completed, that the plaintiffs had suffered $12,925 in damages.

Upon a review of the record, we determine that there was sufficient evidence for the court to make the finding that the defendant breached his contract with the plaintiffs and that they suffered damages. The contract was admitted into evidence, and both of the plaintiffs as well as the defendant testified at length regarding the contract, the payments received and the work completed by the defendant and subcontractors throughout the following months. “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Internal quotation marks omitted.) Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 454, 938 A.2d 1249 (2008). On the basis of the evidence before the court, we conclude that the court’s determination that the defendant breached the contract was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant is Dadi, doing business as Total Design/Dadi Associates, which is a company owned and operated solely by Dadi. We refer to Dadi as the defendant throughout this opinion.

       The court found that the defendant was exempt from registration pursuant to General Statutes § 20-298. Section 20-298, which sets forth the activities that are exempt from the provisions of the statutes pertaining to the licensing of architects, provides: “The following activities are exempted from the provisions of this chapter: (1) The practice of engineering by a professional engineer licensed under the provisions of chapter 391, and the performance by such professional engineer of architectural work for which such professional engineer is qualified by education and experience and which is incidental to such professional engineer’s engineering work; (2) the construction or alteration of a residential building to provide dwelling space for not more than two families, or of a private garage or other accessory building intended for use with such residential building ... (8) the making of plans and specifications for or supervising the erection of any building, any building addition or any alteration to an existing building, where the building, including any addition, contains less than five thousand square feet total area . . . .”
      We find that the statutory route intended by the legislature to exempt a licensed engineer such as the defendant, from registration, however, is § 20-428. “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it. . . . We may affirm the court’s judgment on a dispositive alternate ground for which there is support in the trial court record.” (Citations omitted; internal quotation marks omitted.) Blacker v. Crapo, 112 Conn. App. 795, 808-809, 964 A.2d 1241, cert. denied, 291 Conn. 915, 970 A.2d 727 (2009).


author: ROBINSON, J.

text:
    CHRISTINE L. SAPKO v. STATE OF CONNECTICUT ET AL.
    (AC 30962)
    DiPentima, Robinson and Alvord, Js.

      Argued January 21
    officially released August 3, 2010

      John J. Quinn, with whom was John J. Quinn, Jr., law student intern, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (named defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The plaintiff, Christine L. Sapko, appeals from the decision of the workers’ compensation review board (board), which affirmed the decision by the workers’ compensation commissioner for the eighth district (commissioner) denying her claim for survivor’s benefits, pursuant to General Statutes § 31-306, in connection with the death of her husband, Anthony L. Sapko (decedent), who was employed by the defendant state of Connecticut department of correction at the time of his death. On appeal, the plaintiff claims that the board improperly (1) affirmed the commissioner’s finding that the ingestion of excessive quantities of Oxycodone and Seroquel constituted a superseding cause of the decedent’s death, (2) affirmed the commissioner’s finding that compensable work injuries of February 13, 2001, September 25 and December 10, 2005, and May 16,2006, were not the proximate cause of the decedent’s death, and (3) concluded that the commissioner’s finding that the decedent’s death was due to ingestion of excessive dosages of prescribed drugs was equivalent to a finding that the decedent committed wilful and serious misconduct under General Statutes § 31-284 (a). We affirm the decision of the board.

The following facts, as found by the commissioner and accepted by the board, are relevant to the plaintiffs appeal. “The [plaintiff] is the dependent spouse of [the decedent]. She and the decedent were the parents of two minor children. On August 18, 2006, the decedent died. The decedent’s cause of death was the result of multiple drug toxicity due to the interaction of excessive doses of Oxycodone and Seroquel .... In addition to identifying the cause of death as multiple drug toxicity, the medical examiner’s report also indicated that the nature of the decedent’s death was an accident and not suicide. . . .

“Until the time of his death, the decedent was employed as a correction officer for the state of Connecticut. The decedent’s employment with the state began December 8, 1995, and followed his twenty-one year tenure as [a] police officer for the city of New Britain.

“In the course of his employment as a correction officer, the decedent experienced four incidents which gave rise to claims for workers’ compensation benefits. [The dates of the incidents were February 13, 2001, September 25 and December 10, 2005, and May 16, 2006.] Following the May 16,2006 incident, the decedent remained out of work due to a compensable back injury. Between March 15, 2005 through August 1, 2006, the decedent was treated for back pain by . . . Mark Thimineur [a physician with] the Comprehensive Pain and Headache Treatment Center, LLC. During the period of this treatment the decedent was prescribed various medications. The prescribed drugs included: Oxycodone, Zanaflex, Kadian, Celebrex, Roxicodone, Avinza, Lidoderm patches and Duragesic. . . . The record before the [commissioner] reflected that the Comprehensive Pain and Headache Treatment Center, LLC, counseled the decedent on the proper use of the drugs prescribed for pain control and required the decedent to participate in a controlled substances agreement. . . .

“Beginning in December, 1999, the decedent started treatment for major depression with . . . Edgardo D. Lorenzo, a psychiatrist. The decedent treated with . . . Lorenzo until the time of his death. The week prior to his death, the decedent complained to . . . Lorenzo of depression and racing thoughts. It was for these symptoms that . . . Lorenzo prescribed Seroquel.

“The record also indicated that, at the time of his death, the decedent’s level of Oxycodone was twenty times higher than the therapeutic dosage, and the level of Seroquel was in excess of five times the therapeutic dosage. The [commissioner] found that both drugs can be taken safely if taken in proper dosages. . . . The [commissioner] then found [that the decedent’s] ingestion of excessive quantities of Oxycodone and Seroquel, though accidental, constitute a superseding cause of his death. . . . The [commissioner] also found [that the] work injuries of February 13, 2001, September 25, 2005, December 10,2005, and May 16,2006, were neither a substantial factor nor the proximate cause of [the decedent’s] death.” (Citations omitted; internal quotation marks omitted.) The board affirmed the decision of the commissioner, and this appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the relevant standard of our review. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s finding and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Brown v. Dept. of Correction, 89 Conn. App. 47, 53, 871 A.2d 1094, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005).

I

The plaintiff first claims that the board improperly affirmed the commissioner’s finding that the decedent’s ingestion of excessive quantities of Oxycodone and Seroquel constituted a superseding cause of his death. Specifically, the plaintiff contends that our Supreme Court’s decision in Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003), abrogated the superseding cause doctrine for workers’ compensation cases. We agree.

The following additional facts are relevant to the plaintiffs claim. In his findings, the commissioner concluded that “[the decedent’s] ingestion of excessive quantities of Oxycodone and Seroquel, though accidental, constitute a superseding cause of his death.” The plaintiff filed a motion to correct, suggesting that the commissioner substitute that finding with a finding that “[the decedent’s] ingestion of excessive quantities of Oxycodone and Seroquel was an accidental overdose.” The defendant filed an objection to the motion to correct and a motion for articulation requesting that the commissioner articulate with more specificity that finding because he had failed to specify whether the overdose itself was accidental or whether the resulting death of the decedent was the accidental result of an intentional act. The commissioner denied the plaintiffs motion to correct, as well as the defendant’s motion to articulate.

In her appeal to the board, the plaintiff raised the issue of the commissioner’s application of the superseding cause doctrine. The board stated that “our reading of Barry reflects the court’s analysis of proximate causation in a claim of negligence and where our tort law has been amended so as to apportion liability on the basis of comparable negligence. Given the strict liability concepts underpinning our Workers’ Compensation Act (act); General Statutes § 31-275 et seq.; we do not think that Barry applies as argued by [the plaintiff].” After applying the appropriate proximate cause analysis to the case, the board affirmed the commissioner’s decision.

Our Supreme Court has stated that in Barry, it “questioned the continuing viability of the doctrine of superseding cause and concluded ‘that the rationale supporting the abandonment of the doctrine of superseding cause outweighs any of the doctrine’s remaining usefulness in our modem system of torts. . . . [W]e believe that the instruction on superseding cause complicates what is essentially a proximate cause analysis and risks jury confusion. The doctrine also no longer serves a useful purpose in our tort jurisprudence, especially considering our system of comparative negligence and apportionment, [under which] defendants are responsible solely for their proportionate share of the injury suffered by the plaintiff.’ [Barry v. Quality Steel Products, Inc., supra, 263 Conn. 446.]

“The court did not abolish the doctrine of superseding cause in all civil cases, however, explaining that its ‘conclusion that the doctrine ... no longer serves a useful purpose is limited to the situation in cases . . . [in which] a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence. Our conclusion does not necessarily affect those cases [in which] the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct.’ Id., 439 n.16.” Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 43-44, 946 A.2d 839 (2008).

Although neither Barry nor its progeny directly addressed the question of whether the superseding cause doctrine had been abrogated in workers’ compensation cases, our Supreme Court has since interpreted the dicta in footnote 16 of the Barry opinion to enumerate the exceptions to Barry's abrogation of the doctrine. “Barry clearly establishes that the doctrine of superseding cause is limited to situations in which an unforeseeable intentional tort, force of nature or criminal event supersedes the defendant’s tortious conduct . . . .’’Id., 44. Although it remains possible that a workers’ compensation case could fit into one of the enumerated exceptions, we are not faced with an intentional tort, force of nature or criminal event in the present case. Thus, the board was in error to the extent that it agreed with the commissioner’s application of the superseding cause doctrine. We now must turn to the question of whether the board’s proximate cause analysis serves as a ground for us to affirm its decision.

II

The plaintiff next claims that the board improperly affirmed the commissioner’s finding that the compensable work injuries of February 13, 2001, September 25 and December 10, 2005, and May 16, 2006, were not the proximate cause of the decedent’s death. We disagree.

The following facts are necessary for the resolution of the plaintiffs claim. At the hearing before the commissioner, the parties presented the opinions of several medical professionals. Marc J. Bayer, chief of the toxicology division at the University of Connecticut School of Medicine, stated that the decedent’s death was the result of the combined drug toxicity of Oxycodone and Seroquel. Unlike the conclusion of Frank Evangelista, an associate medical examiner from the office of the chief medical examiner, who concluded that the decedent’s death was accidental, Bayer concluded that there was insufficient evidence to determine whether the decedent deliberately killed himself or if his death was the accidental result of a deliberate act. He further noted that although the level of Oxycodone in the decedent’s system was twenty times higher than the therapeutic dosage, it was unlikely that such a dosage could have caused the decedent’s death in the absence of the Seroquel. The commissioner found Bayer to be credible and persuasive.

The commissioner also examined the deposition of Lorenzo, the decedent’s psychiatrist. Lorenzo began treating the decedent on December 20, 1999, prior to any of the decedent’s compensable injuries, at which time he diagnosed the decedent with major depression. The decedent did not claim his treatment with Lorenzo as part of his workers’ compensation case, and Lorenzo’s treatment notes do not reflect a relationship between the decedent’s injuries and his need for treatment. Lorenzo prescribed Seroquel to treat the decedent’s racing thoughts and depression and for mood stabilization on August 9, 2006, nine days prior to the decedent’s death. In Lorenzo’s view, the decedent’s death was accidental. The commissioner did not find Lorenzo to be credible. He explicitly disregarded Lorenzo’s conclusion that the decedent’s workplace injuries made him more depressed.

Based on the evidence, the commissioner concluded that the compensable injuries were neither a substantial factor nor the proximate cause of the decedent’s death. In considering the proximate cause analysis, the board stated: “First, we note that the law regarding proximate cause analysis in workers’ compensation matters has been and continues to be [that the] personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace [the] resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. .. .

“Applying the appropriate proximate cause analysis to the instant matter, we do not believe the trial commissioner erred. Essentially, the trial commissioner conclude^] that in the instant matter there was some other agency in the chain of proximate cause and that [the] other agency was the claimant’s accidental ingestion of excessive quantities of prescribed medication.” (Citations omitted; internal quotation marks omitted.) Noting that the commissioner’s conclusion was to be left undisturbed unless it resulted from an incorrect application of law, was without support in the evidence or was based on unreasonable or impermissible factual inferences, the board affirmed the commissioner’s conclusion that the compensable injury was not the proximate cause of the decedent’s death.

Before reviewing the plaintiffs claims, we must first articulate the well settled legal principles in this area. For the decedent’s death to be compensable, the plaintiff had to prove a causal connection between the decedent’s compensable injuries and his subsequent death. “It is well settled that, because the purpose of the act is to compensate employees for injuries without fault by imposing a form of strict liability on employers, to recover for an injury under the act the plaintiff must prove that the injury is causally connected to the employment. To establish a causal connection, a plaintiff must demonstrate that the claimed injury (1) arose out of the employment, and (2) in the course of the employment.” (Internal quotation marks omitted.) Spatafore v. Yale University, 239 Conn. 408, 417-18, 684 A.2d 1155 (1996). “Proof that the injury arose out of the employment relates to the origin and cause of the accident. . . . [T]he essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative.” (Internal quotation marks omitted.) Krevis v. Bridgeport, 63 Conn. App. 328, 333, 777 A.2d 196 (2001). “The standard for determining whether the injury arose out of the employment is well established. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace [the] resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.” (Internal quotation marks omitted.) Ryker v. Bethany, 97 Conn. App. 304, 309, 904 A.2d 1227, cert. denied, 280 Conn. 932, 909 A.2d 958 (2006).

“When ... it is unclear whether an employee’s death is causally related to a compensable injury, it is necessary to rely on expert medical opinion. . . . Unless the medical testimony by itself establishes a causal relation, or unless it establishes a causal relation when it is considered along with other evidence, the commissioner cannot reasonably conclude that the death is causally related to the employee’s employment.” (Citation omitted; internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132, 142, 982 A.2d 157 (2009). The commissioner made the determination that Lorenzo’s testimony that the decedent had become more depressed as a result of his compensable injuries was not credible. The commissioner meanwhile accepted the determination of Evangelista, who concluded that the decedent’s death was the result of an accidental overdose, and also Bayer’s conclusion that the dosage of Oxycodone was likely nonfatai unless mixed with the dosage of Seroquel.

The board accepted the commissioner’s conclusion that the decedent’s accidental ingestion of excessive quantities of prescribed medication broke the chain of proximate causation. In the absence of any credible evidence tending to show that the decedent’s depression and subsequent prescription for Seroquel were related to his compensable injuries, that he purposely killed himself for some reason arising out of his compensable injuries or that the dosage of Oxycodone alone could have caused the decedent’s death, the causal link between his compensable injuries and his death simply becomes too attenuated to support a reasonable inference that the injuries and death were connected. The board’s conclusion correctly applied the law and did not rely on facts that were found without evidence or fail to include material facts that were admitted or undisputed. We cannot agree that the board improperly affirmed the commissioner’s finding that the compensable work injuries were not the proximate cause of the decedent’s death, and, thus, the death is not compensable.

[¶]

The plaintiffs final claim is that the board improperly concluded that the commissioner’s finding that the decedent’s death was due to his ingestion of excessive dosages of prescribed drugs was equivalent to a finding that he committed wilful and serious misconduct under § 31-284 (a). We disagree.

On appeal to the board, the plaintiff argued that the commissioner’s conclusion that relied on the superseding cause doctrine was akin to a conclusion that the decedent’s death was due to his wilful and serious misconduct. The board disagreed with the plaintiffs argument and stated that it believed that the commissioner’s findings were “nothing more than a finding and conclusion consistent with proximate cause concepts under our workers’ compensation law” and that the “conclusion was not the result of an inappropriate application of the wilful and serious misconduct defense.” The record does not support the argument that the commissioner made a finding of wilful and serious misconduct. He did not use that term in his findings, and the plaintiff has not referred us to anything in the record indicating that such a finding was made.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-306 (a) provides in relevant part: “Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows ... (4) If there is a presumptive dependent spouse surviving and also one or more presumptive dependent children, all of which children are either children of the surviving spouse or are living with the surviving spouse, the entire compensation shall be paid to the surviving spouse in the same manner and for the same period as if the surviving spouse were the sole dependent. . . .”

       In addition to the state, GAB Robins North America, the administrator of the workers’ compensation policy at issue, also was named as a defendant. Because the state is the only defendant on appeal, we refer to it in this opinion as the defendant.

       General Statutes § 31-284 (a) provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. ...”

       The commissioner’s findings and the exhibits before him revealed the following. Two prescriptions bottles were found near the decedent’s body. One bottle was for Oxycodone and had printed on it instructions that between one and three pills were to be taken each day. The decedent refilled his prescription on August 3, 2006. The prescription contained ninety pills, yet only nineteen pills were in the bottle when police found it on August 18, 2006. The Seroquel prescription had been filled on August 9, 2006. The instructions stated that one to two pills could be taken per night; only eleven of the sixty pills remained in the bottle on August 18,2006. Had the decedent taken the maximum allowable dosage each day, at most forty-five Oxycodone and eighteen Seroquel pills should have been missing. Instead, seventy-one Oxycodone and forty-nine Seroquel pills were missing.

       As part of this claim, the plaintiff also argues that the defendant failed to assert the affirmative defense of wilful and serious misconduct in violation of its burden to alert her as to the specific grounds on which her claim for compensation was being contested pursuant to General Statutes § 31-294c (b).