author: PETERS, J.

text:
    STATE OF CONNECTICUT v. MARLON WHITE
    (AC 33785)
    DiPentima, C. J., and Robinson and Peters, Js.
    Argued September 13
    officially released December 4, 2012

      Norman A. Pattis, with whom, on the brief, was Kelly A. Rommel, for the appellant (defendant).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and David A. Gulick, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

After a trial that the court described as a credibility contest, the defendant was found guilty of having sexually assaulted the complainant in violation of General Statutes §§ 53a-70 (a) (1) and 53a-73a (a) (2). The defendant’s appeal principally challenges the sufficiency of the evidence to establish that he forcibly engaged in sexual intercourse with the complainant. We affirm the judgment of the trial court.

In a two count substitute information dated November 22, 2010, the state charged the defendant, Marlon White, with sexual assault in the first degree in violation of § 53a-70 (a) (l) and sexual assault in the fourth degree in violation of § 53a-73a (a) (2). The defendant denied his guilt and waived his right to a trial by jury. Following a bench trial, the trial court found the defendant guilty on both counts and sentenced him to a total effective term of five years incarceration followed by ten years of special parole. The defendant has appealed from his conviction on both counts.

The court reasonably could have found the following facts. At the time of the incident, the defendant and the complainant were both members of the United States Army, stationed at the Army Reserve Center in Waterbury. They had known each other for approximately three years prior to December, 2008, and had spent time together both professionally and socially, discussing personal topics such as their families and their private lives.

On the morning of December 10, 2008, at the defendant’s request, the complainant arrived at the reserve center earlier than usual, in order to participate in physical fitness training with the defendant. At the completion of this training, the complainant retrieved her shower bag from her office and went downstairs to the female locker room, where she proceeded to shower and dress in a uniform shirt and pants. The defendant then entered the female locker room, wearing only a towel around his waist. When the complainant tried to leave the locker room, the defendant waylaid her and told her that she was not going anywhere. The complainant unsuccessfully tried to free herself from his grasp and to persuade him to release her. He nonetheless briefly had sexual intercourse with the complainant, ■until she was able to pull away from him and leave the area.

After leaving the locker room, the complainant retreated to her office. A female janitor saw her crying, and when she asked what was wrong, the complainant told her that she was upset because someone she thought was her friend had “[done] something bad.”

The defendant subsequently went to the complainant’s office and attempted to engage in further sexual contact, but she pulled away and told him to leave. Later that morning, the defendant returned to the complainant’s office and told her that he was sorry. The defendant asked the complainant to forgive him and tried to hug her. She again asked him to leave and he complied with her request.

That afternoon, the complainant told her supervisor that she had been sexually assaulted. That evening, she went to the emergency room at Waterbury Hospital, where hospital staff took a patient history from her and performed testing for a sexual assault kit. Results from these tests did not reveal any physical injuries. In a statement that she gave to a police officer at the hospital, the complainant identified the defendant as the person who had sexually assaulted her.

At trial, the defendant admitted to having had sexual intercourse with the complainant, but claimed that it had been consensual. Challenging the sufficiency of the evidence against him, he moved for a judgment of acquittal on both counts following the conclusion of the state’s case, which was denied.

In his appeal to this court, the defendant raises two issues. He challenges (1) the sufficiency of the evidence to establish that the complainant did not consent to engage in intercourse with him and (2) the court’s evi-dentiary rulings excluding testimony of prior sexual activity between the parties and the complainant’s medical and personnel records.

I

The defendant’s principal claim is that the state failed to present sufficient evidence to establish the necessary elements of sexual assault in the first and fourth degree because the complainant’s testimony was not credible and, even viewing the evidence in the light most favorable to sustaining his conviction, the record does not establish the element of force. We are unpersuaded.

The standard of review for a claim of insufficient evidence to support a criminal conviction is well established. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the [finding of guilty]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 646-47, 11 A.3d 663 (2011).

“ [A] s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s finding] of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [Finally] in responding to a claim of evidentiary insufficiency ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s finding of guilty].” (Citations omitted; internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 152-53, 976 A.2d 678 (2009).

A

The defendant maintains that there is insufficient evidence to sustain his conviction of sexual assault in the fourth degree pursuant to § 53a-73a (a) (2). To establish a violation of § 53a-73a (a) (2), the state was required to prove that the defendant “subject[ed] another person to sexual contact without such other person’s consent . . .

At trial, the complainant testified that the defendant took hold of her around the waist with both arms as she attempted to exit the female locker room, and that she threatened to tell her supervisor and told him to let her go. She testified that she unsuccessfully struggled to get away, but was physically unable to prevent the defendant from sexually assaulting her. The complainant’s testimony was sufficient for the court reasonably to conclude that the complainant did not consent to having sexual contact with the defendant.

The defendant attacks the validity of the court’s credibility assessment by pointing to the inconsistencies in the complainant’s statements about the assault to the police, to her supervisor, to hospital staff and at trial. He further contends that her delay in reporting the alleged sexual assault and her demeanor following the assault are inconsistent with a lack of consent. We disagree.

It is well established that “[q]uestions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Montoya, 110 Conn. App. 97, 104, 954 A.2d 193, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008).

Viewing the evidence in the light most favorable to sustaining the court’s finding of guilty, we are persuaded that the court reasonably could have found that the state had proved each required element of § 53a-73a (a) (2). We conclude, therefore, that the state presented sufficient evidence to support the defendant’s conviction of sexual assault in the fourth degree.

B

The defendant also challenges the sufficiency of the state’s evidence as to the element of force necessary to establish a violation of § 53a-70 (a) (l). To establish that the defendant violated § 53a-70 (a) (1), the state was required to prove that the defendant “compelled] another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person . . . .” The defendant claims that, even viewed in the light most favorable to sustaining the finding of guilty, the evidence presented by the state did not establish the use of force because the complainant’s testimony did not support such a claim, and because she did not manifest any physical injuries. We are not persuaded.

General Statutes § 53a-65 (7) states that the “ ‘[u]se of force’ means . . . use of actual physical force or violence or superior physical strength against the [complainant].” The use of force is a question of fact for the fact finder. See State v. Coleman, 52 Conn. App. 466, 469, 727 A.2d 246, cert. denied, 249 Conn. 902, 732 A.2d 776 (1999).

“[N]othing ... in our law, suggests that proof of physical violence is necessary to establish that the sexual intercourse or contact has been compelled by the use of force or a threat of the use of force. . . . Furthermore, we have consistently held that one also may be guilty of sexual assault in the first degree if one uses one’s physical size or strength to threaten another to submit to sexual intercourse and that such threat may be expressed or implied.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Jason B., 111 Conn. App. 369, 364, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

In arguing that force was not established, the defendant relies on testimony that there were no buttons missing from the complainant’s pants, that she kept her personal items in her hands and did not use them to stop the attack, that there were no rips in her clothing and that she displayed no physical injuries. In light of the defendant’s concededly superior strength and size, however, the court was entitled to find credible the complainant’s testimony that she had been overpowered and sexually assaulted even though she was not visibly injured.

Viewing the record as a whole, the court reasonably could have found that the evidence presented by the state established beyond a reasonable doubt that the defendant compelled the complainant to engage in sexual intercourse by the use of force. The evidence, therefore, is sufficient to establish that the defendant was guilty of sexual assault in the first degree in violation of § 53a-70 (a) (1).

II

The defendant next claims that the trial court abused its discretion when it (1) excluded the complainant’s confidential medical and personnel records, and (2) prohibited the defendant from questioning the complainant about her prior sexual activity, pursuant to an exception to the rape shield statute.

The following additional facts are relevant to our consideration of the defendant’s claims. Before trial, the state filed a motion in limine, seeking to exclude evidence of the complainant’s prior sexual conduct. The defendant objected, stating that he intended to introduce the complainant’s confidential records to corroborate his theory that her motive for making sexual assault allegations against the defendant was to obtain an honorable medical discharge and a disability pension from the military. The defendant also made an offer of proof at the hearing on the motion, asserting that he intended to offer evidence of an incident two years prior to the alleged sexual assault, in which the defendant and the complainant allegedly exposed themselves to each other.

The court ruled that the defendant was permitted to ask the complainant about this prior incident, but that he could not introduce extrinsic testimonial evidence for the purpose of contradicting the complainant, as it would be collateral to the issue of her credibility. Further, after reviewing the disputed medical records in camera, the court found nothing relevant to the complainant’s alleged motive to fabricate complaints against the defendant and, therefore, denied his request to admit them. There was no ruling regarding the complainant’s personnel records at this hearing, as the court had yet to receive them.

We first set forth the standard of review. “Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Cecil J., 99 Conn. App. 274, 279, 913 A.2d 505 (2007), aff'd, 291 Conn. 813, 970 A.2d 710 (2009).

A

At trial, the court allowed the defendant to pursue limited cross-examination regarding the complainant’s previous request for a medical discharge, despite excluding the records themselves. The defendant, however, maintains that the court abused its discretion when it excluded the complainant’s medical records and personnel records at a pretrial hearing. We disagree.

“On review, we must determine whether the trial court’s decision constituted an abuse of discretion. . . . In making such a determination, this court must conduct an in camera inspection of the sealed records. . . . The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth . . . so as to justify breach of their confidentiality .... Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis. . . . [W]hen the trial court has reviewed the records in camera, access to the records must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Citations omitted; internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 289-90, 889 A.2d 821 (2006).

We have reviewed the challenged medical records, and we conclude that the information contained therein would not shed light on the complainant’s motive in this case. The court, therefore, was within its discretion to exclude the plaintiffs medical records, as they would not have disclosed material sufficiently probative of the defendant’s theory of defense to justify breaching their confidentiality.

Furthermore, we decline to review the complainant’s personnel records, as they were never reviewed in camera by the trial court. “[A] defendant may not successfully establish a violation of his rights to present a defense and to compulsory process without first taking reasonable steps to exercise those rights. ... To exercise his sixth amendment compulsory process rights diligently, a defendant is required to utilize available court procedures, such as the issuance of subpoenas, as well as requests for continuances or material witness warrants that may be reasonably necessary to effectuate the service process.” (Citations omitted.) State v. Tomas D., 296 Conn. 476, 498, 996 A.2d 683 (2010), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 564, 34 A.3d 370 (2012); see also State v. Lubesky, 195 Conn. 475, 478-80, 488 A.2d 1239 (1985) (rejecting compulsory process claim arising from inability to find state witness who had already testified because defendant failed to request continuance or move for mistrial).

If the defendant was concerned that his ability to cross-examine the complainant was compromised by this limitation, it would have been appropriate for him to seek a continuance until an in camera review of the records had been completed, as even the defendant’s counsel conceded at oral argument that a continuance would likely have been granted in this case. Having failed to seek a reasonable continuance, the defendant cannot establish a violation of his right to effectively present a defense.

We conclude, therefore, that the court did not abuse its discretion when it denied the defendant’s request to admit the complainant’s confidential medical and personnel records into evidence.

B

Finally, the defendant claims that the court abused its discretion when it prohibited him from questioning the complainant about a prior incident in which the complainant allegedly exposed herself to the defendant and about prior conversations between the complainant and the defendant about sex. He maintains that the evidence was admissible under General Statutes § 54-86f as an exception to the rape shield statute. We disagree.

“[T]he trial court [is] bound, in the exercise of its discretion, by our rape shield statute. . . . [Section] 54-86f, commonly referred to as the rape shield statute, was enacted to bar or limit the use of prior sexual conduct of an alleged [complainant] of sexual assault because it is such highly prejudicial material. . . . Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the [complainant’s] sexual privacy and shielding her from undue [harassment], encouraging reports of sexual assault, and enabling the [complainant] to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the [complainant], jury confusion and waste of time on collateral matters.” (Citations omitted; internal quotation marks omitted.) State v. Clifford P., 124 Conn. App. 176, 182-83, 3 A.3d 1052, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010).

Specifically, § 54-86f provides in relevant part: “[N]o evidence of the sexual conduct of the [complainant] may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. . . .” The defendant contends that the excluded testimony was material to establishing the lack of credibility of the complainant.

The proffered testimony regarding a prior incident, in which the complainant allegedly exposed herself to the defendant, occurred more than two years before the defendant sexually assaulted the complainant. We agree with the court that this prior incident was not relevant to the complainant’s lack of consent during the sexual assault. Although it may have been relevant to the complainant’s credibility, as the defendant sought to present extrinsic evidence to contradict her testimony, the court properly determined that such evidence was inadmissible because the prior incident was a collateral issue. It is well established that “[a] witness may not be impeached by contradicting . . . her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case.” (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 640, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

Further, as a collateral issue, this evidence was more prejudicial to the complainant than probative of her credibility. “[T]he rape shield statute . . . was enacted specifically to bar or limit the use of prior sexual conduct of an alleged [complainant] of a sexual assault because it is such highly prejudicial material.” (Internal quotation marks omitted.) State v. Smith, 280 Conn. 285, 300, 907 A.2d 73 (2006). Section 4-3 of the Connecticut Code of Evidence also provides: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice ... or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” The court, therefore, properly excluded such testimony.

The defendant also maintains that the court improperly denied his request to make an offer of proof regarding the admissibility of prior sexually charged conversations between the parties raider an exception to the rape shield statute. Although a defendant may be entitled to an evidentiary hearing to demonstrate that the evidence would be admissible under one of the exceptions to § 54-86f, such a hearing is required only if the trial court first determines that the evidence is relevant. State v. Cecil J., supra, 99 Conn. App. 281.

The defendant contends that the line of questioning surrounding these conversations with the complainant was relevant to the complainant’s credibility, because she previously had given testimony inconsistent with her statements on recross-examination by stating that the defendant’s discussion of sexual topics offended her. The defendant, however, mischaracterizes the complainant’s testimony. Contrary to his assertion, the complainant previously testified that she thought such conversations were appropriate. The excluded line of questioning, therefore, was not relevant to the complainant’s credibility, and was directly prohibited pursuant to the rape shield statute as testimony relating to her prior sexual activity. We conclude, therefore, that the court properly exercised its discretion to exclude testimony concerning the complainant’s prior sexual activity and conversations with the defendant, both under § 4-3 of the Connecticut Code of Evidence and pursuant to § 54-86f.

The central issue in this case is whether the credible evidence provided by the state was sufficient to sustain the defendant’s conviction. We conclude that the court properly excluded the complainant’s medical and personnel records, and properly limited testimony about prior sexual activity and conversations between the parties. We further conclude that the evidence of record, as a whole, was sufficient to prove the required elements of § 53a-70 (a) (1) and § 53a-73a (a) (2) beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injuiy to such person or a third person

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent . . . .”

       In reviewing the alleged inconsistencies between the complainant’s various reports of the sexual assault, we conclude that none of them were essential to the elements the state was required to prove. Moreover, the court reasonably could have attributed any inconsistencies in the complainant’s testimony to the passage of time since the incident or to the complainant’s mental state following the assault.

       The defendant also erroneously contends that the state did not establish the element of force necessary to establish a violation of § 53a-73a (a), sexual assault in the fourth degree. Although lack of consent is required to establish a violation of this subsection of the statute, force is not a necessary element. We therefore decline to address this claim. See State v. McKieman, 84 Conn. App. 31, 36-37, 851 A.2d 1198, cert. denied, 271 Conn. 915, 859 A.2d 573 (2004).

       The defendant further contends that, because the court prohibited more detailed questioning of the complainant about the reasons behind her application for a discharge, he was not able effectively to cross-examine the complainant. “[I]n considering confrontation clause challenges where a defendant has been permitted to cross-examine a state’s witness but has been barred from pursuing particular lines of inquiry, [courts] look not only to the scope of cross-examination permitted but also to the overall case presented by the defense to assess whether the jury had an adequate opportunity to evaluate the witnesses’ credibility and potential bias. . . . [W]hen a witness’s credibility is at issue, the trial court may impose limits on cross examination without violating a defendant’s confrontation right so long as the court grants the defendant sufficient leeway to establish a reasonably complete picture of the witness’s bias and motivation to fabricate.” (Internal quotation marks omitted.) State v. Mark R., 300 Conn. 590, 613-14, 17 A.3d 1 (2011).
      We agree with the state that even if the excluded lines of questioning were generally relevant to the defendant’s theory of defense, the scope of cross-examination permitted by the trial court afforded the defendant an adequate opportunity to put before the court his theory that the complainant had fabricated her allegations and, therefore, did not violate the defendant’s confrontation right.

       During cross-examination, the trial court stopped questioning of the complainant to determine whether there had been a ruling following an in camera review of the complainant’s personnel records. When it was discovered that the records had not been reviewed, the court indicated that it would take the defendant’s cross-examination regarding the complainant’s pending medical discharge application “question by question.” At no point did the court indicate that it was refusing to review the personnel records in camera. Rather, the court indicated that the records had not been delivered for review, and it would have to rule on testimony relating to these records as the questions were asked.

       General Statutes § 54-86Í provides in relevant part: “In any prosecution for sexual assault under sections 53a-70 ... to 53a-73a, inclusive, no evidence of the sexual conduct of the [complainant] may be admissible unless such evidence is . . . (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the [complainant], when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. . . .”

       During recross-examination, the defendant’s counsel asked the complainant: “Some of the other discussions that you had with [the defendant] about sex revolved around your sexual relationships. Isn’t that correct?” The state objected on the ground that the complainant’s response was outside the scope of direct examination. The court sustained the state’s objection to this line of questioning and also concluded that it was inadmissible under § 54-86f. The defendant then sought to make an offer of proof regarding the admissibility of this testimony, which was denied.

       The complainant’s testimony during cross-examination about her previous conversations with the defendant did not demonstrate that she was offended by the topic of the conversations:
      “Q. Okay. You talked about strippers right?
      “A. Yes, sir.
      “Q. Okay. You mentioned you talked about a woman’s G-spot. Right?
      “A. Yes, sir.
      “Q. You talked about how some guys can’t please a woman. Isn’t that true?
      “A. Yes, sir.
      “Q. And you consider these appropriate conversations to have with a coworker?
      “A. Yes, sir.”

       The court also properly sustained the state’s objection to the defendant’s line of questioning on recross-examination because it was outside the scope of redirect examination. “A question [on cross-examination] is within the scope of the direct examination if it is designed to rebut, impeach, modify, or explain any of the . . . direct testimony. . . . The trial court is given broad discretion to determine whether a particular line of cross-examination is within the scope of the direct examination.” (Citations omitted; internal quotation marks omitted.) State v. Ramos, 261 Conn. 156, 176-77, 801 A.2d 788 (2002).
      On redirect, the state’s examination of the complainant did not include the topic of the conversations between the parties, but rather concerned a comment made by the defendant to the complainant later in the afternoon on the day of the sexual assault. The question on recross-examination about the complainant’s prior sexual relationships, therefore, was not within the scope of the redirect examination, and it was within the court’s discretion to exclude it.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    PAUL R. HIMMELSTEIN v. JAMES F. BERNARD ET AL.
    (AC 30091)
    Gruendel, Lavine and Mihalakos, Js.

      Argued September 20
    officially released December 4, 2012

      Thomas R. Gerarde, with whom were Beatrice S. Jordan and, on the brief, Jay T. DonFrancisco, for the appellants (named defendant et al.).

      JuriE. Taalman, with whom, on the brief, was Timothy Brignole, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendants Sergeant James F. Bernard and the town of Windsor (town), appeal from the judgment of the trial court denying their motion for summary judgment. Specifically, the defendants claim that the court erred in concluding that the doctrine of res judicata did not bar the plaintiffs action in nuisance. We agree with the defendants and reverse the judgment of the trial court.

Our Supreme Court set forth the following relevant facts and procedural history. “On Tuesday, July 20, 2004, at approximately 6:45 p.m., the plaintiff was operating his bicycle in the northbound travel portion of Route 159, also known as Palisado Avenue, in the town. Due to vehicular traffic also traveling on Route 159, the plaintiff was forced to cross over the white fog line and into the area of the breakdown lane between the white fog line and the curb, or the edge of the road. There, he collided with a radar trailer that the town’s police department had placed in that area. As a result of the collision, the plaintiff suffered various personal injuries and economic damages. Thereafter, on June 24, 2005, in a seven count complaint, the plaintiff alleged, inter alia, a breach of statutory duty pursuant to [General Statutes] § 13a-149 against the town, a claim of nuisance against the town for placing the radar trailer in the travel portion of the road, and claims for negligence, nuisance and breach of statutory duty pursuant to General Statutes § 13a-144 against the commissioner of transportation and certain employees or agents of the department of transportation.” Himmelstein v. Windsor, 304 Conn. 298, 301-302, 39 A.3d 1065 (2012).

On September 23, 2005, after a hearing and the submission of memoranda from both parties, the trial court granted the town’s motion to strike the plaintiffs nuisance claim against it. The court stated: “In this case, the plaintiff does not allege that anything other than the failure of the town and/or its employees to remedy or warn him of the position of the radar trailer was the proximate cause of his injuries. He clearly alleges that a physical impediment at street level, in the traveled portion of the roadway, rendered the roadway not reasonably safe for travel. . . . Therefore, the court concludes, as a matter of law, that the allegations as to the radar trailer in the plaintiffs complaint bring it within the class of objects . . . that constitute defects in the highway. . . . [I]f the obstruction is maintained in a condition that renders the highway unsafe, it is deemed a defect. . . [and] the town is hable under the highway defect law. . . . Accordingly, since the radar trailer [as alleged] constitutes a highway defect, the plaintiffs exclusive remedy is an action pursuant to § 13a-149.” (Citations omitted; internal quotation marks omitted.) Id., 302-303.

“The plaintiff thereafter filed an amended complaint essentially removing all of his claims against the town except for the claim pursuant to § 13a-149, but preserved for appellate review the counts that the trial court had struck. The town subsequently filed a motion for summary judgment as to the plaintiffs remaining count, arguing, inter alia, that the town was not the party bound to keep the roadway in the location of the plaintiffs accident in repair because it was a state highway, and thus was not hable to the plaintiff under § 13a-149. After reviewing the pleadings, affidavits and other proof submitted in connection with the motion for summary judgment, and the plaintiffs opposition thereto, the trial court . . . determined that the plaintiffs accident occurred on Route 159, which is indisputably a state highway maintained solely by the state department of transportation. Accordingly, the trial court granted the town’s motion for summary judgment, concluding that the town had no obligation to maintain the highway at the location of the accident and, therefore, the plaintiff had failed to establish an essential element of his claim under § 13a-149, which allows recovery only from ‘the party bound to keep [the defective road] in repair.’ ” Id., 303-304.

“The plaintiff appealed from the judgment of the trial court to the Appellate Court, arguing . . . that the trial court improperly struck his nuisance count and improperly granted the town’s motion for summary judgment. ... In affirming the judgment of the trial court, the Appellate Court concluded that the court ‘properly determined, as a matter of law, that the specific allegations set forth in count four of the complaint [sounding in nuisance] fall within the province of § 13a-149 . . . [and] because count four of the complaint set forth an allegation of a municipal highway defect, § 13a-149 was the exclusive remedy available to the plaintiff. . . . After [the trial court] determined that the allegations contained in count four invoked § 13a-149 as a matter of law, the nuisance count was legally insufficient and no longer viable.’ ” (Citation omitted.) Id., 304.

“The Appellate Court further concluded, with respect to the grant of the motion for summary judgment on the plaintiffs sole remaining count, that the town had established that there was no genuine issue of material fact that the state, rather than the town, was bound to keep Route 159 in repair, and that the plaintiff had failed to present evidence that would raise such a triable issue of fact in that regard.” Id. The plaintiff appealed to the Supreme Court, which affirmed wholly this court’s judgment. Id., 301.

On July 19, 2007, before this court or the Supreme Court rendered their judgments with respect to the plaintiffs appeal, the plaintiff served a complaint commencing the present action in nuisance against the defendants. The plaintiff asserts that Bernard, a named defendant in the present action, is the defendant who was once denominated as “John Doe” in the plaintiffs first action, although in that first complaint the claim that the plaintiff brought against Bernard was one of negligence rather than nuisance. On February 6, 2008, the defendants filed and the court ultimately granted a motion to consolidate the first action with the present action now before this court. The defendants, on October 18, 2007, filed a motion for summary judgment asserting, inter alia, that the plaintiffs claims of nuisance against the town and its employee, Bernard, were barred by the doctrines of res judicata and collateral estoppel. The defendants argued that the court’s granting of the defendants’ motion to strike the plaintiffs nuisance claim against the town was a decision on the merits, rendering the matter res judicata. The plaintiff opposed the motion, asserting that the court’s granting of the motion to strike was a “procedural” decision, not to be considered a decision on the merits for purposes of res judicata. After a hearing, the court issued an oral decision denying the defendants’ motion for summary judgment. In explaining its reasoning, the court did not address res judicata and collateral estop-pel separately. Rather, it stated that the striking of the nuisance claim did not constitute a judgment on the merits; thus, both the doctrines of collateral estoppel and res judicata were inapplicable to the case. From this judgment, the defendants appeal.

“The standard of review of motions for summary judgment is well settled. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. • • • The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts .... Our review of the trial court’s decision to deny the defendant’s motion for summary judgment is plenary. . . . [Likewise] [t]he applicability of res judicata . . . presents a question of law over which we employ plenary review.” (Citations omitted; internal quotation marks omitted.) Savvidis v. Norwalk, 129 Conn. App. 406, 409-10, 21 A.3d 842, cert. denied, 302 Conn. 913, 27 A.3d 372 (2011).

“Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.” State v. Aillon, 189 Conn. 416, 423-24, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). “The doctrine of res judicata [applies] ... as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . .” (Citation omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 590, 2 A.3d 963 (2010), rev’d on other grounds, 306 Conn. 107, 49 A.3d 951 (2012). “The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. . . . Furthermore, [t]he judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. . . . The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Citation omitted; internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 685-86, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998).

“Because the operative effect of the principle of claim preclusion ... is to preclude relitigation of the original claim, it is crucial to define the dimensions of that original claim. . . . [T]he claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction . . . out of which the action arose. . . . [This] transactional test . . . provides a standard by which to measure preclusive effect of a prior judgment, which we have held to include any claims relating to the cause of action which were actually made or might have been made. . . . [E]ven though a single group of facts may give rise to rights for several kinds of relief, it is still a single cause of action.” (Internal quotation marks omitted.) Savvidis v. Norwalk, supra, 129 Conn. App. 410-11.

The resolution of this appeal turns on whether the court’s granting of the motion to strike the claim of nuisance against the town in the plaintiffs first action was a decision on the merits. “A motion to strike . . . challenges the most fundamental aspect of a plaintiffs cause of action. ... If no cause of action was stated and the complaint could not be amended to correct this deficiency, judgment necessarily would be rendered for the defendants. . . . That a judgment rendered pursuant to a motion to strike is a judgment on the merits has been a part of our decisional law for more than a century. Since [a] decision on [a] [motion to strike] determine [s] that no right of action exist[s], the judgment [following the failure to plead over, is] as final and complete as a judgment following a trial on the merits. . . . The fact that [a] former judgment was upon demurrer, [our state’s predecessor of the motion to strike] does not militate in the least against its being a decision on the merits, and as binding as a judgment after verdict.” (Citations omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 127 Conn. App. 606, 616-17, 15 A.3d 1131, cert. granted on other grounds, 301 Conn. 918, 21 A.3d 464 (2011).

In the present action, the plaintiff asserts the identical claim, of nuisance against the town that the court struck in the first action. Before the court granted the defendants’ motion to strike, the parties had the opportunity to argue before the court and to submit memoranda in support of their respective positions. Following that grant, the plaintiff had a choice: amend his complaint, if possible, or file a motion for judgment and take an appeal. He chose the latter, which bound him to abide by the decisions of the appellate courts. Both this court and our Supreme Court have found no error in the court’s striking of the nuisance claim against the town. Accordingly, the claim of nuisance, having been struck properly by the court, is a judgment on the merits for purposes of res judicata.

The remaining elements necessary to satisfy the doctrine of res judicata are present as well. The identity of the parties in both the first action and the present action are the same. Both actions allege the same legal claim of nuisance and arise out of the same event, or transaction, in which the plaintiff alleges he was injured. Under the doctrine of res judicata, therefore, the plaintiff may not now relitigate his claim of nuisance against the town.

We address next the defendants’ claim that Bernard is to be considered as one entity with the town for purposes of res judicata because the plaintiff has brought this action against him in his official capacity. As the law of Connecticut squarely answers this question in the affirmative, we agree with the defendants.

While the complaint in the present action does not explicitly specify that Bernard is named in his official capacity, it refers to Bernard as “Police Sergeant in the Town of Windsor . . . .’’It also alleges that Bernard’s “direction, supervision, control and/or participation” in placing the radar trailer on Palisado Avenue created the nuisance responsible for the plaintiffs injuries. Furthermore, the plaintiff, in his brief to this court, unequivocally stated that Bernard “is being sued herein in his official capacity.” Accordingly, we need not engage in any analysis of whether the plaintiffs action is against Bernard in his official or individual capacity.

“It is well settled law that an action against a government official in his or her official capacity is not an action against the official, but, instead is one against the official’s office and, thus, is treated as an action against the entity itself. ... [In general] an official capacity suit is, in all respects other than name, to be treated as a suit against the entity. ... It is not a suit against the official personally, for the real party in interest is the entity. . . . Since [officials] represent not their own rights but the rights of the municipality the agents of the same municipal corporation are in privity with each other and with the municipality.” (Citations omitted; internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005).

Having been sued in his official capacity, Bernard is one with the town. Thus, the plaintiffs present action against Bernard is merely a redundant claim of nuisance against the town. Accordingly, for the same reason as explained previously, which is that the plaintiffs present action against the town is precluded by the doctrine of res judicata, the plaintiffs nuisance action against Bernard, in his official capacity, also is precluded.

Given that the doctrine of res judicata bars the plaintiffs claim in nuisance, both against the town and Bernard in his official capacity, there exists no genuine issue of material fact; the plaintiffs nuisance claim simply is not viable as a matter of law. Accordingly, we conclude that the court improperly denied the defendants’ motion for summary judgment, contrary to the mandate of Practice Book § 17-49.

The judgment is reversed and the case is remanded with direction to grant the defendants’ motion for summary judgment and to render judgment for the defendants.

In this opinion the other judges concurred.

       Tim Scully, a department of transportation employee, also was named as a defendant. The action later was withdrawn as against him, and he is not a party to this appeal. We therefore refer in this opinion to Bernard and the town as the defendants.

       While a denial of summary judgment generally is not considered a final judgment for purposes of appellate review, the denial of a motion for summary judgment based on the doctrine of res judicata is a final judgment for purposes of an appeal. Singhaviroj v. Board of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010).

       The defendants claim, in the alternative, that the court erred in concluding that the doctrine of collateral estoppel did not bar the plaintiffs nuisance action. As we conclude that res judicata applies, we need not address the defendants’ collateral estoppel claim.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. . . .”

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”

       The claims in the original action against the state and its agents all have been withdrawn by the plaintiff or disposed of by the court.

       General Statutes § 52-557n (a) (1) is the source of the exclusivity of the remedy available under § 13a-149. It provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. . . .” General Statutes § 52-557n (a) (1).

       The plaintiff, in his brief to this court, has attempted to relitigate the viability of his nuisance action against the town and its agents in light of § 13a-149. Our Supreme Court, however, has ruled on this issue, deciding that the plaintiffs claim in nuisance was legally insufficient because § 13a-149 provides his exclusive remedy. Himmelstein v. Windsor, supra, 304 Conn. 310-11. Moreover, the substantive merits of the plaintiffs nuisance claim are not at issue in this appeal.


author: LAVINE, J.

text:
    IN RE AZAREON Y. ET AL.

    (AC 34691)
    Lavine, Robinson and Espinosa, Js.

      Argued October 15
    officially released November 20, 2012

      James P. Sexton, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Gregory T. D’Auria, solicitor general, for the appellee (petitioner).

      Christine Perra Rapillo, Shelley A. White and Sarah Healy Eagan filed a brief for the office of the chief public defender et al. as amici curiae.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       November 20,2012, the date this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

LAVINE, J.

The respondent mother, Shayna Y., appeals from the judgments of the trial court, Cofield, J., terminating her parental rights with respect to her minor son and daughter, pursuant to General Statutes § 17a-112 (j) (3) (B) (i) for failure to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, she could assume a responsible position in the lives of her children. On appeal, the respondent claims that (1) § 17a-112 is not tailored sufficiently narrow to secure the best interests of her children without violating her substantive rights to due process under the state and federal constitutions and (2) the court abused its discretion and violated her rights to due process under the federal constitution by failing to hold, sua sponte, a hearing to determine her competency to stand trial. We affirm the judgments of the trial court.

In its oral memorandum of decision, the court made the following findings of fact by clear and convincing evidence. When the respondent, who was bom in 1989, was a young child, she was removed from her own mother’s care and placed in the custody of her maternal aunt. The respondent did not do well in school and, at the age of ten and one-half years old, was referred to Riverview Hospital. She has been diagnosed with attention deficit hyperactivity disorder, anxiety and depression. Medication will not help the respondent’s memory and judgment problems. The court found that the respondent is transient and unemployed and has mental health and domestic violence issues. She exhibits poor parenting skills, a failure to perceive safety issues and poor judgment. The respondent has received a variety of services from Hartford Behavioral Health, Village for Children and Family and Klingberg Family Services, but either has not completed the programs offered or was not able to benefit from them.

The respondent gave birth to her son in 2008 and to her daughter in 2009. A social worker from the department of children and families removed the children from the respondent’s home in November, 2010, pursuant to a ninety-six hour hold. The petitioner, the commissioner of children and families, filed a motion for an order of temporary custody on November 12, 2010. On May 10, 2011, the court, Dyer, J., adjudicated the children neglected and ordered specific steps for the respondent. On September 20, 2011, the petitioner filed petitions to terminate the respondent’s parental rights with respect to her son and her daughter. Since October 13, 2011, the children have resided with the respondent’s maternal aunt, a licensed foster parent, who has presented herself as an adoptive resource. Judge Cofield granted the petitions to terminate the respondent’s parental rights with respect to her minor son and daughter on May 18, 2012, after finding that termination was in the best interests of the children. The court found that the children were in need of a secure and permanent environment. This appeal followed.

On appeal, the respondent concedes that “her cognitive limitations preclude reunification with her children as a viable means of providing a stable environment for them going forward.” Nonetheless, she claims that (1) § 17a-112 is unconstitutional as applied to her because it violates her substantive due process rights under the federal and state constitutions and (2) that the court denied her due process under the federal constitution by failing to order, sua sponte, an evaluation to determine whether she was competent to understand the proceedings and assist her counsel. The respondent acknowledges that she failed to preserve either of her claims at trial and, therefore, on appeal, seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

An appellant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [appellant] of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [appellant’s] claim will fail. The appellate tribunal is free, therefore, to respond to the [appellant’s] claim by focusing on whichever condition is most relevant in the particular circumstances.

“The [appellant] bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the [appellant’s] claim.” (Emphasis in original.) Id.

I

The respondent’s first claim is that § 17a-112, as applied to her, denied her substantive due process of law because, during the dispositional phase of trial, the court did not find by clear and convincing evidence that there was no permanency plan that would have secured the best interests of her son and daughter that was less restrictive than termination of her parental rights with respect to her children. The record is inadequate for our review of the respondent’s claim.

Section 17a-112 (k) prescribes the factual findings a court must make by clear and convincing evidence in deciding whether the termination of parental rights is in the best interest of the child. In a termination of parental rights proceeding, the “statutory criteria must be strictly complied with before termination can be accomplished.” (Internal quotation marks omitted.) In re Dorrell R., 64 Conn. App. 455, 463, 780 A.2d 944 (2001). The record contains the petitioner’s permanency plan but is devoid of alternatives, and the respondent has not indicated that she requested that the court consider any alternatives. Moreover, the court’s memorandum of decision does not indicate whether the court considered a permanency plan other than the one advocated by the petitioner, and the respondent did not ask the court to articulate whether it had considered other options. See Practice Book § 66-5.

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the respondent’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Duteau, 68 Conn. App. 248, 254, 791 A.2d 591, cert. denied, 260 Conn. 939, 835 A.2d 58 (2002). The respondent’s claim fails for lack of an adequate record.

n

The respondent’s second claim is that the court deprived her of her right to due process under the federal constitution by failing to order, sua sponte, a competency examination to determine whether she had the cognitive ability to understand the nature of the proceedings and could assist her counsel. The respondent concedes that she did not preserve her claim, but seeks reversal of the judgments pursuant to State v. Golding, supra, 213 Conn. 239-40. We decline to reverse the judgments.

In support of her claim, the respondent relies on the evidence presented by various service providers and psychologists regarding her cognitive ability, mental health and lack of judgment as a parent. The respondent, however, has failed to direct us to any evidence that a person qualified to do so indicated to the court that she was not competent to understand the nature of the proceedings and to assist her appointed counsel. Neither did her counsel indicate to the court that the respondent was unable to assist him. Although there is evidence in the record of the respondent’s impaired cognitive function, the record lacks the “specific factual allegations”; (internal quotation marks omitted) In re Alexander V., 223 Conn. 557, 566, 613 A.2d 780 (1992); that she could not “understand the proceedings or assist in the presentation of her case.” Id., 568.

“[TJhere is no statute or court rule requiring a trial court in a termination proceeding to hold a hearing to determine a parent’s competency. In the termination setting, only General Statutes § 45a-708 (a) addresses the competency issue. That provision requires that a guardian ad litem be appointed for a parent who ‘appears’ to be . . . incompetent. The plain language of § 45a-708 (a) does not provide for an evidentiary hearing, nor does it require any particular measures beyond the appointment of a guardian to protect the rights of an incompetent person facing the termination of parental rights.” Id., 562.

“By definition, a mentally incompetent person is one who is unable to understand the nature of the termination proceeding and unable to assist in the presentation of his or her case. . . . Simply appointing a guardian ad litem for a parent in such a condition might well fail to protect the parent sufficiently against an unreliable adjudication terminating parental rights.” (Citations omitted.) Id., 563.

In a criminal case, a “defendant who appeals on the basis of a trial court’s failure to conduct an evidentiary inquiry into his competence must make a showing that the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency .... The decision to grant [an evidentiary] hearing [into a defendant’s competence] requires the exercise of sound judicial discretion.” (Citations omitted; internal quotation marks omitted.) State v. George B., 258 Conn. 779, 786-87, 785 A.2d 573 (2001).

In In re Alexander V., our Supreme Court concluded that “due process does not require a competency hearing in all termination cases but only when (1) the parent’s attorney requests such a hearing, or (2) in the absence of such a request, the conduct of the parent reasonably suggests to the court, in the exercise of its discretion, the desirability of ordering such a hearing sua sponte. In either case, the standard for the court to employ is whether the record before the court contains specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Evidence is substantial if it raises a reasonable doubt about the [parent’s] competency . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alexander V., supra, 223 Conn. 566.

On the basis of our review of the record, we conclude that the court’s failure to order sua sponte a competency evaluation did not constitute an abuse of its discretion. The record is devoid of specific factual allegations that the respondent did not understand the nature of the termination proceeding or was unable to assist her counsel. Our conclusion is consistent with the decisions of our Supreme Court and this court in cases where a similar claim has been raised on a similar factual record. See In re Kaleb H., 306 Conn. 22, 26, 28-30, 48 A.3d 631 (2012) (record insufficient to trigger court’s purported obligation to order competency evaluation when child’s mother claimed she did not know what she was signing when she agreed to neglect adjudication); State v. George B., supra, 258 Conn. 787-88 (defendant understood and answered responsively questions asked of him; although answers to questions asked of him were strange, defendant did not demonstrate lack of knowledge as to nature of proceedings); In re Alexander V., supra, 223 Conn. 567 (despite testimony from psychologist that mother suffered from borderline personality disorder and its affects on ability to parent, other evidence tended to indicate mother mentally competent); In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949 (question of whether children’s mother competent to stand trial never raised despite evidence of her mental disability; inadequate record for review), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); In re Brendan C., 89 Conn. App. 511, 521-23, 874 A.2d 826 (despite father’s diagnosis of mild mental retardation, his testimony at trial demonstrated he understood purpose of proceeding to terminate his parental rights), cert. denied, 274 Conn. 917, 879 A.2d 893, 275 Conn. 910, 882 A.2d 669 (2005); In re Amanda A., 58 Conn. App. 451, 460-61, 755 A.2d 243 (2000) (summary review where nothing in record to support claim that children’s mother lacked ability to understand nature of proceedings or to assist counsel); In re Lori Beth D., 21 Conn. App. 226, 230-31, 572 A.2d 1027 (1990) (no plain error where court fails to appoint guardian ad litem for father who, despite mental illness, did not appear incompetent at trial). For the foregoing reasons, we conclude that the court did not abuse its discretion by failing to order sua sponte a competency evaluation of the respondent.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court also rendered judgment terminating the parental rights of the respondent John Doe with respect to his minor son on the grounds of abandonment and no ongoing parent-child relationship pursuant to § 17a-112 Q) (3) (A) and (D). The court terminated the parental rights of the respondent Frederick R. with respect to his minor daughter on the ground of failure to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, he could assume a responsible position in the life of his daughter pursuant to § 17a-112 Q) (3) (B) (i). Neither of the fathers is a party to this appeal. In this opinion, respondent refers to Shayna Y.

       The office of the chief public defender, Center for Children’s Advocacy, Inc., and New Haven Legal Assistance Association, Inc., jointly filed a brief in support of the respondent’s position.
      Counsel for the children has taken the position that the judgments terminating the respondent’s parental rights with respect to her minor son and daughter should be affirmed.

       The maternal aunt is agreeable to an open adoption.

       The respondent and the amici curiae acknowledge the state’s compelling interest in protecting the health, safety and welfare of its children. They argue, liowever, that § 17a-112 is overly broad as it does not require the court to consider whether termination of a parent’s parental rights with respect to her child is the least restrictive alternative to achieve the best interest of the child. They claim that, during the dispositional phase of this case, the court should have been required to find by clear and convincing evidence that the intervention ordered is the least restrictive means necessary to ensure the safety and well-being of the children.

       “The legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112 . . . exists by clear and convincing evidence. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. . . . The best interest determination also must be supported by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487-88, 940 A.2d 733 (2008); see also General Statutes § 17a-112 (k).

       General Statutes § 17a-112 (k) provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall malee written findings regarding: (1) The timeliness, nature and extent of services offered ... (2) whether the Department of Children and Families has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into and agreed upon ... (4) the feelings and emotional ties of the child with respect to the child’s parents ... (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to malte it in the best interest of the child to return such child home in the foreseeable future ... (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child . . . .”

       In her brief, the respondent has alternately used the terms competency evaluation and competency hearing.

       The relevant certified issue in In re Alexandra V., supra, 223 Conn. 557, was “[ujnder what circumstances does the due process clause of the United States constitution require a determination of parental competency as a prerequisite to a proceeding for the termination of parental rights? Were there sufficient indicia of incompetence in this case to have required the trial court to inquire into competency, sua sponte?” In re Alexander V., 220 Conn. 927, 598 A.2d 366 (1991).


author: PER CURIAM.

text:
    ELIZABETH RICHTER v. ALEXANDER G. RICHTER
    (AC 33888)
    DiPentima, C. J., and Gruendel and Espinosa, Js.
    Argued October 11
    officially released December 4, 2012

      Elizabeth Richter, pro se, the appellant (plaintiff).

      Edith F. McClure, for the appellee (defendant).
   Opinion

PER CURIAM.

In this dissolution proceeding, the self-represented plaintiff, Elizabeth Richter, appeals from the judgment of the trial court denying her motion for a permanent injunction. That motion requested an order that the court’s September 16, 2010 memorandum of decision be removed from the trial court record specifically and the Internet generally. In the September 16, 2010 memorandum of decision, the trial court denied the plaintiffs motions to open the judgment of dissolution and granted the motion of the defendant, Alexander G. Richter, for attorney’s fees. This court affirmed the propriety of that judgment on appeal. Richter v. Richter, 137 Conn. App. 231, 237, 48 A.3d 686 (2012).

We have reviewed the plaintiffs various claims, including one alleging judicial bias, and conclude that they are equally without merit. Mindful that a prayer for injunctive relief is addressed to the sound discretion of the court; Broadnax v. New Haven, 270 Conn. 133, 170, 861 A.2d 1113 (2004); we conclude that the trial court in the present case did not abuse its discretion in denying the plaintiffs motion.

The judgment is affirmed.

       In granting the motion for attorney’s fees, the court found that “after the plaintiff filed her original motion to open, the file has erupted from one and a half volumes to four volumes and that even while the court heard the case, the file was being peppered with motions and uninvited memoranda. In addition, the court found that the plaintiff had caused substantial legal costs to the defendant by filing false claims and that she had filed the present case in order to get even with a person she believed was her enemy.” (Internal quotation marks omitted.) Richter v. Richter, 137 Conn. App. 231, 233, 48 A.3d 686 (2012).