author: FOTI, J.

text:
    STATE OF CONNECTICUT v. CLAUDIO C.

    (AC 30364)
    DiPentima, C. J., and Bear and Foti, Js.

      Argued October 12
    officially released December 21, 2010

      Frank P. Cannatelli, for the appellant (defendant).

      LeonF. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Helen McLellan, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

FOTI, J.

The defendant, Claudio C., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence an out-of-court statement of the victim, violating his rights secured under the confrontation clause of the sixth amendment to the United States constitution, as articulated by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and (2) concluded that the state did not waive counts four through six of the six count, long form information because the clerk of the court initially only read counts one through three to the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The following procedural history and facts, which the jury reasonably could have found, are relevant to the defendant’s appeal. In 2005, the victim was ten years old and attended the fifth grade. She resided principally with her paternal aunt in an apartment that was situated above a store operated by her grandmother and grandfather, the defendant. On May 25, 2005, after returning home from school, the victim stopped at her grandparents’ store for something to eat and then proceeded to her aunt’s apartment to do her homework. That same day, the victim’s father, who was on business out of state, received a call from the defendant’s cell phone. The two men had a conversation regarding the location of a checkbook to which the defendant needed access.

At approximately 3:30 p.m., the victim’s aunt went into the bedroom where the victim was studying and informed her that she and the victim’s grandmother were going out to run an errand. Prior to leaving, the aunt gave the victim her cell phone. Shortly after the two women left, the defendant entered the bedroom. Upon entering the room, the defendant went over to the bed where the victim was sitting and removed her pants and underwear. He then removed his own pants and underwear and proceeded to get on top of the victim, cover her mouth with his hand and “[rub] his private [parts] against [the victim’s private area].” While the assault was occurring, the victim’s father received another telephone call from the defendant’s cell phone. This time, however, there was no response when he answered the call or said “hello” multiple times. The victim’s father, however, could hear his daughter’s voice say, “no grandpa,” three times. He also was able to hear the defendant, his father, telling the victim to be quiet. Reacting to what he heard, the victim’s father used a coworker’s cell phone to attempt a call for help. Following the assault, the defendant pulled up his pants and went back downstairs.

The victim’s father immediately attempted to call his sister, the victim’s aunt. Because the aunt had given her cell phone to the victim, the victim answered the call. During the ensuing conversation, the victim’s father asked her about what he heard on his cell phone, and the victim reluctantly told him about the sexual assault. He then instructed her to leave the apartment and to go to a friend’s house. The victim’s father then contacted his sister to inform her about what had happened and subsequently called the New Haven police department to report the assault. The police did not respond immediately, however, because the victim’s father requested to be present when the police arrived to investigate. After speaking with the police, the victim’s father had a telephone conversation with the defendant and confronted him about the assault. The victim’s father told the defendant that he had two choices: either leave the country or face going to prison. Thereafter, the victim’s father facilitated the purchase of a one way ticket that enabled the defendant to leave the country and to go to Argentina.

When he arrived home from his business trip, the victim’s father chose not to follow up with the police because the defendant was no longer in the country, and he did not want his daughter to be impacted negatively by an investigation of the sexual assault. On August 12, 2005, the defendant returned to Connecticut from Argentina. By this time, the victim was living exclusively with her father in Guilford. After learning that the defendant had returned to the area and that the victim was aware of his return, the victim’s father arranged for her to receive counseling from a licensed therapist at the Guilford Youth and Family Services Center. During one of the intake interviews, the victim’s father informed the therapist that the victim had been sexually assaulted by the defendant. The therapist then reported the alleged assault to the department of children and families (department). The department, in turn, reported the allegations to Detective Otoniel Reyes of the New Haven police department, who began an investigation on August 22, 2005.

On September 7, 2005, Reyes arranged for the victim to be interviewed by a multidisciplinary team at the Yale Child Sexual Abuse Clinic (clinic). Florence Mackey conducted the forensic interview, and Janet Murphy, a pediatric nurse practitioner, performed the physical examination. During the interviews, Reyes observed through a privacy glass. Once the interview with the victim was completed, Reyes contacted the defendant. After being interviewed at the New Haven police department, the defendant provided Reyes with a statement denying any wrongdoing regarding the events of May 25, 2005. Continuing his investigation, Reyes interviewed the victim’s father and aunt. Following his interview with the victim’s aunt, Reyes decided to interview the victim briefly one more time, this time at her school. Present during this interview were the victim; Reyes; his partner, Detective William White, Jr.; and the principal and the vice principal of the school. Reyes asked the victim whether she had been told what to say during their previous interview. The victim told Reyes that everything she said during their interview was true and that no one had coached her or told her what to say. Concluding his investigation, Reyes prepared a warrant for the arrest of the defendant.

Ultimately the defendant was charged in a six count information with two counts of sexual assault in the third degree and four counts of risk of injury to a child. The jury found the defendant guilty of one count of sexual assault in the third degree and two counts of risk of injury to a child. The court sentenced him to a total effective term of twenty-five years incarceration, execution suspended after seventeen years, with ten years of probation, to which special conditions were attached, including registration as a sex offender and conditions, psychological testing and treatment as deemed appropriate by the office of adult probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence an out-of-court statement of the victim, thus violating his rights under the confrontation clause of the sixth amendment to the United States constitution as articulated in Crawford v. Washington, supra, 541 U.S. 36. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim on appeal. During direct examination, the victim identified unequivocally the defendant as the person who had sexually assaulted her on May 25, 2005, in addition to describing the manner in which the assault had taken place. The victim also testified that she reiterated these details to Mackey, Reyes and Murphy during her interview at the clinic. The victim then testified that she had a subsequent conversation with Reyes at her school but was unable to remember the details of that conversation. On cross-examination, the victim was asked about her conversations with Reyes; however, she was not asked specifically what she told Reyes during their second interview.

On direct examination, Reyes described the details of his investigation. Reyes testified that after interviewing the victim’s aunt, he became aware that during his initial interview with the victim, he had failed to ask her if anyone instructed her to make statements that were untrue. Thereafter, Reyes explained that he had a brief conversation with the victim at her school. When asked to describe the second interview, Reyes said: “It was a very brief conversation. ... I asked her . . . [d]id anyone tell you to say anything that happened that was not true, that actually didn’t happen, and she looked at me without . . . blinking an eye and she told me no, that everything she said had been the truth.”

On cross-examination, the defendant followed up on Reyes’ interview with the victim at her school:

“Q. . . . Can you tell the jury . . . how you asked that question to her [regarding the victim’s telling the truth], if you could, if you can recall?
“A. I think I — I said it earlier. I — I asked how she was doing, told her that I stopped in to — just, I needed to ask her a question . . . and I said, did anyone, at any point in time, ask you to say something that wasn’t true with regard to what happened to you, and she said no and that was it. . . . It was a very short conversation and it was limited to that.”

The defendant concedes that he did not object to the admission of Reyes’ testimony at trial, and he now seeks review of this unpreserved claim under State v. Golding, 213 Conn. 233,239-40, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

The defendant claims that the admission of the victim’s extrajudicial statement, introduced through Reyes, deprived him of his right to confrontation under the sixth amendment to the United States constitution. In essence, the defendant argues that Reyes’ testimony was inadmissible hearsay because (1) it was testimonial in nature and (2) it occurred after the victim’s testimony and, thus, effectively negated his opportunity to cross-examine her. We conclude that the defendant has failed to demonstrate that this claim is of constitutional magnitude. See State v. Stepney, 94 Conn. App. 72, 79, 891 A.2d 67, cert. denied, 278 Conn. 911, 899 A.2d 40 (2006).

“As a general matter, hearsay statements may not be admitted into evidence unless they fall within a recognized exception to the hearsay rule. ... In the context of a criminal trial, however, the admission of a hearsay statement against a defendant is further limited by the confrontation clause of the sixth amendment.” (Citation omitted.) State v. Smith, 289 Conn. 598, 618, 960 A.2d 993 (2008). “Under Crawford v. Washington, supra, 541 U.S. 68, the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence.” (Emphasis added; internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 651-52, 945 A.2d 449 (2008).

It is axiomatic that in order for a Crawford violation to occur, the defendant must be confronted with testimony from a declarant who has been deemed unavailable. See State v. Pierre, 277 Conn. 42, 78-79, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). In State v. Simpson, supra, 286 Conn. 634, our Supreme Court clarified this principle definitively, explaining: “Crawford ‘makes clear . . . that, when the declarant appears for cross-examination at trial, the [confrontation [cjlause places no constraints at all on the use of his prior testimonial statements. . . . The [cjlause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.’ ” Id., 652-53, quoting State v. Pierre, supra, 78.

Turning our attention to the present case, the record reflects that the victim testified at trial. During direct examination, the victim testified that she had a second conversation with Reyes but could not recall the contents of that conversation. See footnote 10 of this opinion. Moreover, during cross-examination, the victim was questioned about her conversations with Reyes; however, she was not asked specifically about the conversation at her school. The defendant has failed to produce any facts or point us to any authority that would have rendered the victim unavailable under Crawford, Additionally, there is no indication that the defendant sought to conduct further cross-examination of the victim after Reyes testified or that the court, in any relevant way, interfered with his right to cross-examine the victim. See State v. Stepney, supra, 94 Conn. App. 78 n.2. Consequently, the defendant’s position, which is that he was deprived of his right to cross-examine the victim fully and effectively because Reyes testified after the victim, is untenable. See id. “The mere fact that [the witness] testified after the victim did not deprive the defendant of his right to cross-examine the victim fully and effectively.” Id., 79 n.2. Because the victim was available at trial to explain her statements to Reyes, the confrontation clause of the sixth amendment was not violated. See State v. Simpson, supra, 286 Conn. 652. Therefore, the defendant’s claim was rendered “evidentiary in nature and, as a result . . . not entitled to Golding review.” State v. Warren, 83 Conn. App. 446, 451, 850 A.2d 1086, cert. denied, 271 Conn. 907, 859 A.2d 567 (2004).

“The defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. . . . [0]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” (Citation omitted; internal quotation marks omitted.) State v. Stepney, supra, 94 Conn. App. 79. Accordingly, the defendant’s unpreserved evidentiary claim fails under the second prong of Golding.

II

The defendant’s second claim is that the court improperly concluded that the state did not waive counts four through six of the six count, long form information because the clerk of the court mistakenly read only the first three counts to the jury during the information’s initial reading. We note that the defendant, in his appellate brief, has provided no standard of review, no authority and engaged in no legal analysis of this claim. Other than providing a four sentence recitation of the facts and asserting that the state’s burden of proof was lessened, the defendant has failed to present us with the necessary foundation required to evaluate this claim on appeal.

“[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010); see also Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn. App. 63, 69 n.6, 918 A.2d 889 (2007) (“[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones” [internal quotation marks omitted]), aff'd, 286 Conn. 548, 944 A.2d 329 (2008).

We conclude that the defendant’s brief, in the absence of any discussion of a standard of review, legal analysis or authority regarding this claim, is wholly inadequate. Accordingly, we decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The sixth amendment to the United States constitution provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him .... The confrontation clause of the sixth amendment is-made applicable to the states through the due process clause of the fourteenth amendment.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634,636 n.4,945 A.2d 449 (2008).

       The victim’s parents divorced in 2000. After the divorce, she lived with her father, or principally with members of her father’s family, until the time of the sexual assault.

       During direct examination, the victim identified what she meant by “private parts” through the use of anatomical diagrams depicting the body of a male and the body of a female. The victim also stated that the contact that occurred during the assault was skin to skin.

       Reyes testified that during his interview with the victim’s aunt, she had alluded to the fact that the victim may have been told what to say during the interview at the clinic. To ensure that his investigation was comprehensive, Reyes conducted the second interview in order to confirm that the victim had not been coached during the interview at the clinic.

       Although the majority of the victim’s testimony pertained to the incident that occurred on May 25, 2005, she also discussed a similar incident that allegedly had taken place a couple of days earlier. The victim testified that on this occasion, the defendant did not remove his pants, nor did he attempt to remove her clothing. Instead, the defendant rubbed against the victim in a maimer similar to that in the victim’s description of the assault that occurred on May 25, 2005, although she was clothed.

       In his testimony about his investigation, Reyes described (1) facilitating the videotaped interview at the clinic, where he observed the interviews through a privacy glass; (2) interviewing the victim’s father, the victim’s uncle, the victim’s grandmother and the victim’s aunt; and (3) the details of an interview conducted with the defendant.

       The state concedes that the victim’s extrajudicial statement to Reyes that she had not been told how to respond during the multidisciplinary interview was testimonial.

       In his appellate brief, the defendant claims that because Reyes testified after the victim, “the right to confront [her] at trial was too late, [and] improperly allow[ed] the bolstering of her testimony in front of the jury.” To support this argument, the defendant relies primarily on Crawford v. Washington, supra, 541 U.S. 51-52, and Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

       Our jurisprudence has held consistently that a declarant’s inability to remember previous statements does not render that witness “functionally unavailable” under Crawford. See State v. Holness, 289 Conn. 535, 958 A.2d 754 (2008); State v. Simpson, supra, 286 Conn. 653-54; State v. Pierre, 277 Conn. 42, 86, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).

       We take no position as to whether the proffered testimony of the victim through Reyes was inadmissible hearsay because we determine that the defendant’s claim fails to satisfy the second prong of Golding. See State v. Golding, supra, 213 Conn. 239-40.

       We cannot ascertain from the defendant’s appellate brief whether he is claiming that the state implicitly withdrew counts four through six or waived them entirely.

       The defendant was charged, by way of a six count information, with two counts of sexual assault in the third degree in violation of § 53a-72a (a) (1) (A) and four counts of risk of ipjury to a child in violation of § 53-21 (a) (2). In counts one through three, the state charged the defendant with one count of sexual assault in the third degree and two counts of risk of injury to a child, respectively, for events alleged to have occurred on May 25, 2005. Counts four through six were identical with the exception that the alleged assault was said to have occurred on or about May 16 through 24, 2005.
      On May 13, 2008, prior to the beginning of the evidentiary portion of the trial, the clerk of the court read only the first three counts to the jury. Neither the state nor the defendant alerted the court to this omission. The trial commenced and the state proceeded to call three witnesses. During a recess, and outside the presence of the jury, the clerk informed the court of the inadvertent omission. The state requested that the remaining charges be read into the record, stating that it had not filed any amendments to the written information. The defendant objected, claiming that the court should consider counts four through six waived and that reading the omitted charges would cause the defendant undue prejudice.
      The court concluded that the defendant’s rights were not prejudiced as a result of the inadvertence and ordered counts four through six read to the jury after the recess. Prior to the clerk’s reading the remaining charges to the jury, the court instructed the jury that, through inadvertence, the clerk previously had mistakenly read only the first three counts of the six count information. The court instructed the jury that the information was not evidence, nor could it be used to draw any negative inferences, and that each charge was separate and must be considered individually. Thereafter, counts four through six were read to the jury. On May 19, 2008, the jury returned a verdict of guilty on counts one through three and not guilty on counts four through six.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MEREDITH KEATING v. MARK FERRANDINO
    (AC 31731)
    Graendel, Beach and Bear, Js.
    Submitted on briefs October 15
    officially released December 21, 2010

      Mark Ferrandino, pro se, the appellant (defendant), filed a brief.

      Meredith Keating, pro se, the appellee (plaintiff), filed a brief.
   Opinion

PER CURIAM.

The defendant, Mark Ferrandino, appeals from the judgment of the trial court granting his motion to modify child support payments to be made to the plaintiff, Meredith Keating. On appeal, the defendant claims, as well as we can discern, that in determining his child support obligations the court erred in (1) applying the child support guidelines, (2) failing to take into account his children from a previous marriage, (3) assessing the parties’ available net income and (4) failing to consider the plaintiffs earning capacity. Because the defendant’s brief is inadequate, we decline to review his claims. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On August 16, 2002, the parties, who were never married to each other, had their only child together. In March, 2006, the plaintiff filed the present action against the defendant seeking custody of their child, child support, a judicial determination that the defendant is the father of the child and attorney’s fees. On July 24, 2007, the parties entered into a stipulation regarding custody of and parental access to their child. On December 20, 2007, the court issued a memorandum of decision in which it found that the defendant was a self-employed contractor with an earning capacity in excess of $88,000 per year and that the plaintiff was unemployed. The court also found that the defendant was paying child support for two children of a marriage that predated the relationship of the parties. The court thus ordered the defendant to pay the plaintiff $400 per week in child support and 50 percent of the child’s unreimbursed medical and dental expenses.

On March 25, 2008, the defendant filed a motion to open or to set aside the court’s December 20, 2007 judgment. On August 28,2008, the court issued a memorandum of decision modifying its child support order to require that the defendant pay the plaintiff $125 per week retroactive to December 20, 2007. On June 25, 2009, the defendant filed a motion to modify the child support order. Finding a substantial change in circumstances, the court, on October 28, 2009, issued a memorandum of decision further modifying its child support order to require the defendant to pay the plaintiff $90 per week, to continue providing health insurance for the child and to pay 55 percent of the child’s unreimbursed medical and dental expenses. This appeal followed.

It is well settled that “[w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [Fjor this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Interna! quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

We begin by noting that the defendant’s brief does not comport with the rules of appellate procedure. Practice Book § 67-4 prescribes the requirements to be included in the appellant’s brief. Most of these requirements are lacking in the brief in question. Additionally, the defendant’s brief is substantively deficient. While “[w]e are aware that [i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party”; (internal quotation marks omitted) State v. Adams, 117 Conn. App. 747, 755, 982 A.2d 187 (2009); we are also aware that “[ajlthough we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Id. Furthermore, it is axiomatic that this court may not act as an advocate for any party. State v. Tocco, 120 Conn. App. 768, 786, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). Accordingly, we decline to review the defendant’s claims.

The judgment is affirmed.

       The court made a judicial determination that the defendant is the biological father of the child.

       The court, determined that it erred in issuing its December 20,2007 child support order because it failed to take into account the parties’ shared custody arrangement.


author: ROBINSON, J.

text:
    IN RE RAFAEL S.

    (AC 31772)
    Bishop, Robinson and Hennessy, Js.
    Argued October 13
    officially released December 21, 2010

      Elizabeth Knight Adams, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Scott M. Maser, 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

ROBINSON, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her minor children, Jacqueline and Rafael. On appeal, the respondent claims that the trial court improperly concluded that termination of her parental rights served the best interests of the children. We affirm the judgments of the trial court.

In its memorandum of decision, the court found the following facts. Jacqueline and Rafael were bom in March, 1995, and February, 1998, respectively. On April 6, 2004, the petitioner, the commissioner of children and families, filed neglect petitions on behalf of the children, alleging that they were being denied proper care and attention and were permitted to live under conditions injurious to their well-being. On May 25, 2004, the respondent and the children’s biological father each entered a written plea of nolo contendere to the allegations. The disposition for both children was a six month period of protective supervision with both parents.

On June 7, 2004, the petitioner filed applications for orders of temporary custody, alleging that both children were in immediate physical danger from their surroundings and that their continuing to live in their home was contrary to the welfare of each child. The orders of temporary custody were granted. The petitioner also filed a motion to open the disposition of protective supervision and to modify the disposition to commit each child to the petitioner. On August 13, 2004, the parties agreed to modify the disposition, the court accepted the agreement and the children were committed to the custody of the petitioner. On March 17, 2005, the parties reached an agreement to revoke the commitment of each child. The court accepted the agreement, ordered that custody of the children revert back to the respondent and imposed an additional six month period of protective supervision.

On June 20, 2006, the petitioner again filed applications for orders of temporary custody. The applications raised the same allegations as the previous applications, namely, that both children were denied proper care and attention and were permitted to live under conditions injurious to their well-being. The court granted the orders, and each child was committed to the custody of the petitioner. In addition, the court issued to the respondent specific steps for rehabilitation in an effort to assist her reunification with the children. In March, 2007, both children were placed in the same foster home.

On May 10, 2007, the court granted the petitioner’s permanency plan for each child for reunification with the respondent. On February 6, 2008, the petitioner filed a permanency plan for each child to terminate the parental rights of the respondent regarding both children. On June 6, 2008, the petitioner filed petitions seeking to terminate the parental rights of the respondent and the children’s father. The petitioner alleged that, in a prior proceeding, both children had been found to have been neglected or uncared for and that the parents had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of the children, each parent could assume a responsible position in the life of each child. On October 8, 2009, trial on the petitions commenced.

In the adjudicatory phase of the proceedings, the court found by clear and convincing evidence that the respondent had failed to rehabilitate as of the trial date and that “it is not foreseeable that she will rehabilitate within a reasonable period of time so that she could achieve a responsible position in the life of either Jacqueline or Rafael.”

In the dispositional phase of the proceedings, the court considered and made written findings regarding the seven factors listed in General Statutes § 17a-112 (k). The court determined that the department of children and families (department) had offered numerous services to the respondent in order to facilitate her reunification with her children. The court further determined that the respondent had failed to attend the great majority of those services and that she “has failed to recognize her substance abuse problem, has not addressed her mental health issues, has learned nothing about domestic violence and has had, and continued to have, contact with the man who physically and sexually abused her and her children.” The court determined that the respondent had “made little, if any, adjustment in her circumstances, conduct or conditions to make it in the best interest of either Jacqueline or Rafael to return to her home in the foreseeable future.” The court then determined, by clear and convincing evidence, that it was in the best interests of the children that the respondent’s parental rights be terminated. This appeal followed.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Brea B., 75 Conn. App. 466, 469-70, 816 A.2d 707 (2003).

“The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)].” (Citation omitted; internal quotation marks omitted.) In re Ryan R., 102 Conn. App. 608, 625-26, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007). We note that those “seven factors serve simply as guidelines for the court and are not statutoiy prerequisites that need to be proven before termination can be ordered. . . . There is no requirement that each factor be proven by clear and convincing evidence.” (Citation omitted.) In re Victoria B., 79 Conn. App. 245, 261, 829 A.2d 855 (2003).

Furthermore, termination of parental rights litigation, including the present case, often involves testimony from various child welfare professionals. “The testimony of professionals is given great weight in parental termination proceedings. ... It is well established that [i]n 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. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible. ... On appeal, we do not retry the facts or pass on the credibility of witnesses. ... It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other.” (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn. App. 768, 781-82, 740 A.2d 896 (1999).

On appeal, the respondent claims that the court improperly concluded that termination of her parental rights was in the best interests of the children. In support of her claim, she argues that (1) termination did not serve her children’s best interests because they maintained a loving bond with her and they did not want her parental rights terminated; (2) termination did not serve Jacqueline’s best interest because the response by the petitioner’s expert witness to a hypothetical question was equivocal as to whether termination necessarily served Jacqueline’s best interest; and (3) termination did not serve Jacqueline’s best interest because Jacqueline had no identified preadoptive family at the time of trial. We disagree with the respondent’s arguments and conclude that the court, in finding that termination of the respondent’s parental rights was in the best interests of Jacqueline and Rafael, properly considered the statutory factors set forth in § 17a-112 (k) and issued findings that are neither clearly erroneous nor contrary to the law.

I

The respondent first argues that termination of her parental rights did not serve the best interests of her children because her children maintained a loving bond with her and did not want her parental rights terminated. Although the respondent claims that the evidence adduced at trial revealed that she and the children have a strong bond, “[o]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941,912 A.2d 476 (2006); see, e.g., In re Tyqwane V., 85 Conn. App. 528, 536, 857 A.2d 963 (2004); In re Ashley S., 61 Conn. App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Quanitra M., 60 Conn. App. 96,106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Although the court did find that both children had a loving bond with the respondent, the court’s analysis thoroughly addressed the respondent’s inability to provide a stable home for her children, as reflected by the court’s finding that she had failed to address the issues that had prevented her from being an effective parent, namely, substance abuse, mental health issues and domestic violence issues. The court concluded that “the bond between [the respondent] and her children does not negate that . . . viewed in the totality of the circumstances, it is in the best interest of each child to terminate [the respondent’s] parental rights. . . . Only terminating the parental rights of the respondent mother can put these children on the road to the stability that they crave and deserve.” Accordingly, because the court’s findings and conclusions are supported by the evidence, we decline to disturb them on this basis.

II

The respondent next argues that the termination did not serve Jacqueline’s best interest because the response to a hypothetical question by the petitioner’s expert witness was equivocal as to whether termination necessarily served Jacqueline’s best interest. At trial, the petitioner called to the witness stand Bruce Freedman, a licensed psychologist with expertise in the area of child custody evaluation. Prior to trial, Freedman had created a report based on his psychological evaluations of the respondent and her children. The report included his opinion regarding whether termination of the respondent’s parental rights would serve the children’s best interests. In the report, Freedman opined that “[f]or [Jacqueline], termination of parental rights would be clearly in her best interests.” On cross-examination, counsel for the children posed to Freedman a hypothetical question and asked whether, based on the hypothetical, he would change his opinion regarding Jacqueline’s best interest:

“[Counsel for the Minor Children]: And I want you to assume for a minute, I’m going to ask you a hypothetical. Since the time of your report, I want you to assume that it’s now been disclosed that the current foster placement that . . . Jacqueline’s in, does not want to adopt her, has expressed no interest in adopting her, they will keep her there long-term but not . . . adopt, that there’s a recent relative placement resource that’s come forward; however, Jacqueline’s total contact with this placement resource at this point has been two or three visits for one day. I also want you to assume that Jacqueline’s visited with [the respondent] on a weekly basis, that Jacqueline has expressed to her [department] worker as well as to her attorney that she does not want to see [the respondent’s] parental rights terminated and that she’d like to live with either [the respondent] or this other relative resource.

“And finally, I would like you to assume that Jacqueline’s expressed that the most important thing for her is to continue to have contact with [the respondent], regardless of where she ends up living, she wants to continue to have contact with [the respondent]. Keeping all that in mind, does that change your opinion in regards to your response to the question that was asked of you back in January, 2009, to actually provide an opinion regarding placement of these children with permanency in mind in which you responded that for [Jacqueline], termination of parental rights would clearly be in her best interest?”

Freedman responded that “[t]he important element, whether it’s through termination or a long-term foster care, is that there’s got to be some adult who has enough authority to help guide her when, you know, visits are constructive and they’re helping her and not hurting her and when she needs to take a break from it.” (Emphasis added.) The respondent argues that, because Freedman’s response was equivocal as to whether termination necessarily served Jacqueline’s best interest, the court did not have clear and convincing evidence to support its finding that termination of her parental rights would serve Jacqueline’s best interest.

“Although we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court’s own factual judgment as to the child’s best interest.” (Citations omitted; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004). Regardless of whether Freedman’s response to the hypothetical question was equivocal, our review of the record reveals that there was clear and convincing evidence, in the form of exhibits and testimony, that supported the court’s finding that termination of the respondent’s parental rights would serve Jacqueline’s best interest. Accordingly, we decline to disturb the court’s finding.

m

The respondent finally argues that her parental rights with regard to Jacqueline should not have been terminated because Jacqueline had no identified preadoptive family at the time of trial. Although the court found that Jacqueline had no identified preadoptive family, “the law does not preclude the termination of a biological parent’s rights simply because adoption of the child by new parents is not imminent. Although subsequent adoption is the preferred outcome for a child whose biological parents have had their rights terminated . . . it is not a necessary prerequisite for the termination of parental rights. While long-term stability is critical to a child’s future health and development . . . adoption provides only one option for obtaining such stability.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 492, 940 A.2d 733 (2008). “Termination of a biological parent’s rights, by preventing further litigation with that parent, can preserve the stability a child has acquired in a successful foster placement and, furthermore, move the child closer toward securing permanence by removing barriers to adoption. . . . Even if no adoption is forthcoming, termination can aid stability and lessen disruption because a parent whose rights have been terminated no longer may file a motion to revoke the commitment of the child to the custody of the commissioner . . . or oppose an annual permanency plan.” (Citations omitted.) Id., 495-96.

Jenny Johnson, the department social worker assigned to this case, testified that, despite the unwillingness of Jacqueline’s foster mother to adopt Jacqueline, the foster mother had indicated that she would provide Jacqueline with long-term foster care. Additionally, Freedman opined in his report that “[Jacqueline] should remain with [her foster mother], who had shown a highly commendable commitment to [Jacqueline] during her extended period of residential treatment.” Furthermore, the department was in the process of investigating Jacqueline’s half-brother as a long-term placement resource. The court found that, at the time of trial, her half-brother had met every department requirement and that Jacqueline wanted to live with and be adopted by him if the respondent’s parental rights were terminated. In light of this evidence, the trial court reasonably could have concluded that the possibility of a permanent placement for Jacqueline with either her current foster mother or with her half-brother was preferable to the continuing uncertainty of the status quo.

In light of the foregoing, we conclude that it was not clearly erroneous for the court to have found that it was in the best interests of the children to terminate the parental rights of the respondent.

The judgments are affirmed.

In this opinion the other judges concurred.

       In her brief, the respondent also claims that the trial court improperly concluded that she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, she could assume a responsible position in their lives. During oral argument, however, the respondent’s counsel informed the court that the respondent was abandoning this issue. We will address, therefore, only the remaining issue on appeal.

       The children’s biological father is not a party to this appeal.

       In November, 2008, Rafael was placed with a different foster family. At the time of trial, the children lived in separate foster homes.

       Prior to trial, the respondent father signed a form consenting to the termination of his parental rights regarding Rafael and the petitioner withdrew its petition to terminate his parental rights with regard to Jacqueline. Therefore, trial was confined to the petitions to terminate the respondent mother’s parental rights.

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

       The court specifically was concerned with the respondent’s continuing contact with the father: “[The respondent] continues to have contact with the man who abused her and her children and has asked Jacqueline to lie about this contact. . . . What is equally as troubling is the fact that the respondent mother knows that Jacqueline and Rafael are afraid of [him], obviously with good cause.” (Citations omitted.)

       See footnote 5 of this opinion.

       We emphasize here that, in determining whether termination of a parent’s rights is in a child’s best interest, the court considers as one of seven factors “the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties . . . General Statutes § 17a-112 (k) (4). The court carefully considered the children’s interest in maintaining a relationship with the respondent before concluding that termination of the respondent’s rights was in their best interests. The respondent argues that termination of her rights is adverse to her children’s interest in maintaining a relationship with her and, therefore, that it was not in their best interests. Specifically, she contends that termination effectively would cut off any mechanism by which she could ensure contact with her children. Although we agree that termination would affect adversely her legal relationship with her children; see, e.g., In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990) (termination involves “the complete severance ... of the legal relationship, with all its rights and responsibilities, between the child and his parent” [internal quotation marks omitted]); there is no evidence in the record to suggest that termination of her rights would preclude the maintenance of a familial or nonlegal relationship between the respondent and her children, or that contact between the children and the respondent would not be permitted, fostered or encouraged by the children’s caretakers.

       The respondent does not make this argument concerning termination of her rights with regard to Rafael. We note that the court found that, at the time of trial, Rafael was well settled in a preadoptive home and that his foster mother was “an ideal adoptive parent.” Indeed, his foster mother testified that she was willing to provide him a permanent home and to adopt him. Therefore, our analysis of this argument is confined to termination of the respondent’s rights as they pertain to Jacqueline.


text:
    IN RE CHEVOL G. ET AL.

    (AC 32233)
    Alvord, Bear and Peters, Js.

      Argued November 8
    officially released December 21, 2010

      David B. Rozwaski, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenlhal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

PER CURIAM.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to three of her children, Chevol G., Trinity G. and Lazarus G. The respondent claims, inter alia, that the court improperly found that (1) the department of children and families (department) had made reasonable efforts to reunify the children with the respondent pursuant to General Statutes § 17a-112 (j), (2) the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, she could assume a responsible position in the lives of the children and (3) the termination of her parental rights was in the children’s best interests. We affirm the judgments of the trial court.

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [GJreat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence.” (Citation omitted; internal quotation marks omitted.) In re Gabrielle M., 118 Conn. App. 374,376-77,983 A.2d 282 (2009).

The respondent first claims that the court improperly found that the department made reasonable efforts toward reunification. She argues that the “only real outstanding issue was her own individual counseling . . . [and that] for the most part, she did make an effort to engage in services,” but she faults the department for its failure to “follow-up” on the offered services. We disagree.

“The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. . . . [Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Katia M., 124 Conn. App. 650, 668, 6 A.3d 86 (2010). The court found that the department made reasonable efforts toward reunification, including, but not limited to, offering “case management services, assistance with transportation, including medical cabs, supervised visitation, substance abuse evaluation, individual counseling referrals, domestic violence and anger management counseling referrals” as well as services for the children. Further, the court found that the respondent was unable or unwilling to benefit from the reunification efforts because despite the services provided, she (1) failed to recognize the role she played in the removal of the children and to take the steps necessary to facilitate their return to her care, (2) was unable to control her behavior toward the service providers, which was “openly hostile,” (3) failed to address her own need for counseling and (4) did not demonstrate an ability to act as a stable parent. Because there is ample clear and convincing evidence in the record to support this determination, we conclude that the court’s finding was not clearly erroneous.

The respondent’s next claim is that the court improperly determined that the record contained clear and convincing evidence that she failed to achieve a sufficient degree of personal rehabilitation. The respondent claims that the court “did not properly credit [her] progression toward addressing her issues . . . .” She argues that she was able to “clearly demonstrate that she has been making efforts to rehabilitate herself’ and, therefore, “she could assume a role of responsibility for the care of her children in the foreseeable future with the assistance of appropriate services to help her meet her children’s special needs.” We disagree.

“We have stated that [p]ersonal rehabilitation as used in [§ 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) In re Kaitlyn A., 118 Conn. App. 14, 26, 982 A.2d 253 (2009).

The court acknowledged that the respondent had attended parenting classes, demonstrated an ability to control the children in a structured setting, made minimal improvements and complied with certain suggestions by the petitioner, the commissioner of children and families, but noted that a parent’s compliance with rehabilitative programs, while relevant, is not dispositive as to the rehabilitation finding. In re Trevon G., 109 Conn. App. 782, 791, 952 A.2d 1280 (2008). It held that the respondent still lacked the skills, stability and consistency to take responsibility for the children, each of whom has significant mental health needs. These findings were supported by evidence of her “abysmal” behavior during the supervised visits, inconsistent attendance at visits, lying to one of the children’s mental health physicians and continued refusal to seek psychiatric care. Accordingly, the finding that the respondent failed to achieve a sufficient degree of personal rehabilitation as required under the statute is not clearly erroneous.

Finally, the respondent claims that the court erred in finding that it was in the children’s best interests to have her parental rights terminated. We disagree. “In arriving at [the decision whether termination of parental rights is in the best interest of the child], the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being and continuity and stability of its environment.” (Internal quotation marks omitted.) In re Johnson R., 121 Conn. App. 464, 466, 994 A.2d 739, cert. granted on other grounds, 297 Conn. 925, 998 A.2d 168 (2010). In the present case, the court considered each of the seven statutory factors and also took into account, among other things, the children’s interest in returning home, the respondent’s slight progress over a lengthy ten year period, the “totality of the circumstances surrounding each of the children” and the potential for adoption into each of their foster homes. Its decision with respect to the best interests of the children was not clearly erroneous in light of the respondent’s lengthy history of difficulty with parenting, the testimony of the mental health professionals, the recommendation of the guardian ad litem and the evidence of both the children’s and the respondent’s continued behavioral problems.

We have examined the record and briefs and have considered the arguments of the parties. The thorough and well reasoned memorandum of decision sets forth detailed findings of fact that find support in the record and are neither clearly erroneous nor contrary to the law. See In re Alexander C., 262 Conn. 308, 311, 813 A.2d 87 (2003). On the basis of our careful review, we conclude that the record amply supports the factual determinations made by the court, and we conclude that the court correctly applied the law to the facts it properly found.

The judgments are affirmed.

       The court also terminated the parental rights of the respondent father. Because he has not appealed, we refer in this opinion to the respondent mother as the respondent. The respondent did not appeal from the court’s denial of her motion to revoke the commitment of the children to the custody of the department, which was rendered simultaneously with the termination of parental rights.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed [for termination of parental rights] if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child

       The court determines the child’s best interest by making findings of fact by clear and convincing evidence as to seven statutory factors enumerated in § 17a-112 (k), and using those findings to assess the child’s best interest. In re Ryan R., 102 Conn. App. 608, 625-27, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007).

       The respondent contends that we should apply the “scrupulous” standard of review set forth in In re Melody L., 290 Conn. 131, 174-209, 962 A.2d 81 (2009) (SchaUer, J., concurring). This “rigorous level of factual review has not been endorsed by our Supreme Court for termination of parental rights cases. Accordingly, we are without authority to apply it now.” In re Sole S., 119 Conn. App. 187, 191 n.6, 986 A.2d 351 (2010).


author: BISHOP, J.

text:
    JOHN TAYLOR v. COMMISSIONER OF CORRECTION
    (AC 30464)
    Bishop, Gruendel and Beach, Js.
    Argued September 23
    officially released December 21, 2010

      Lauren Weisfeld, senior assistant public defender, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, John Taylor, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly denied his motion to open and to vacate the judgment of dismissal of his habeas corpus petition on the basis that he and his attorney failed to appear for trial. We agree with the petitioner and, accordingly, reverse the judgment of the habeas court.

On September 29, 2004, the petitioner was convicted, after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 2 la-279 (d). The petitioner subsequently was sentenced to a total effective term of three years incarceration. This court affirmed his conviction. State v. Taylor, 101 Conn. App. 160, 161, 921 A.2d 617, cert. denied, 283 Conn. 903, 927 A.2d 916 (2007).

The petitioner filed his initial petition for a writ of habeas corpus on March 23, 2005, which he later amended to allege ineffective assistance of counsel. On May 27, 2005, attorney Christopher M. Neary was appointed to represent the petitioner and filed an appearance in lieu of the petitioner’s pro se appearance and that of the public defender’s office. On April 8,2008, the habeas court entered a scheduling order, which was signed by counsel for both parties, establishing deadlines for various pleadings and court filings, and setting a trial date of August 12, 2008. On July 30, 2008, the petitioner filed a motion to modify the scheduling order to continue the trial date to January, 2009. The respondent, the commissioner of correction, filed an objection to the petitioner’s motion. On August 7, 2008, the habeas court denied the petitioner’s motion and sustained the respondent’s objection. Counsel for both parties were afforded notice of the court’s ruling by telephone and written notice.

On August 12, 2008, both the petitioner and his attorney failed to appear for trial. The respondent made an oral motion to dismiss the petitioner’s claims, which the court granted, with prejudice. The court also ordered the petitioner’s counsel to show cause why he should not be fined for failure to comply with the April 8, 2008 scheduling order.

On August 25, 2008, counsel for the petitioner filed a motion to open and to vacate the judgment, claiming that he had assumed that the court had granted his motion for a continuance because “there was no possible way [that he could] adequately represent the petitioner without the materials” requested by way of discovery. Although counsel acknowledged that notice of the court’s denial of his motion was sent on August 7, 2008, he explained that he was in Danbury on that date and did not return to his office until August 12, 2008, due to an illness in the family. Counsel explained that he could not check his telephone messages during that time and did not realize that his motion had been denied until he returned to his office late on August 12, 2008. On September 10, 2008, the court denied the motion to open and to vacate the judgment. The petitioner next filed a petition for certification to appeal from the judgment of the habeas court, which the habeas court also denied. This appeal followed.

“When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion. ... A petitioner satisfies that substantial burden by demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If the petitioner can show that the habeas court abused its discretion in denying the petition for certification to appeal, then the petitioner must demonstrate that the judgment of the habeas court should be reversed on its merits. ... To determine whether the court abused its discretion, we must consider the merits of the petitioner’s underlying claims.” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 123 Conn. App. 121, 126-27, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010).

The petitioner claims that the court improperly denied his motion to open and to vacate the judgment of dismissal rendered by the habeas court on the ground that neither he nor his attorney appeared for trial and that the court improperly dismissed his claims without affording him the right to be present in violation of Practice Book § 23-40 (a). We agree.

“[I]n reviewing a court’s ruling on a motion to open, reargue, vacate or reconsider, we ask only whether the court acted unreasonably or in clear abuse of its discretion.” (Internal quotation marks omitted.) Gianetti v. Gerardi, 122 Conn. App. 126, 129, 998 A.2d 807 (2010). Practice Book § 23-40 (a) provides in relevant part: “The petitioner . . . shall have the right to be present at any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case, unless the petitioner . . . waives such right or is excused by the judicial authority for good cause shown. ...”

When the court dismissed the petition on August 12, 2008, it noted that counsel for both parties were notified of the denial of the petitioner’s motion to modify the scheduling order. In a subsequent articulation issued by the court, it again explained that counsel for both parties had been notified of that denial. The court never indicated, nor is there any indication in the record, that the petitioner was notified of that order; nor does the record reflect that the petitioner was ever notified that a scheduling order was in place or that his petition was subject to dismissal for failure to comply with the scheduling order. Because Practice Book § 23-40 (a) mandates that a petitioner be afforded the right to be present at any dispositive hearing, and the petitioner in this case was not afforded that right, we conclude that the court improperly dismissed the petition. Thus, we conclude that the court abused its discretion in denying the petitioner certification to appeal and that the decision of the court must be reversed.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion GRUENDEL, J., concurred.

BEACH, J., concurring and dissenting. I respectfully concur with the conclusion of the majority that further proceedings are required. I believe, however, that the habeas court was not constrained to delay action on the request by the respondent, the commissioner of correction, for a dismissal of the claims by the petitioner, John Taylor, until a second hearing could be held. I also believe that the court erred in not holding a hearing on the petitioner’s motion to open and to vacate the judgment of dismissal at which the petitioner would be afforded the right to be present.

I agree with the majority’s summary of the facts and will not repeat them here at length. At the time of the scheduled trial on the merits of the habeas action, neither the petitioner nor his attorney appeared. After it became apparent that neither was going to appear, the attorney for the respondent moved the court to dismiss the case.

Unlike the majority, I believe that the court was not required at that juncture to notify the petitioner, presumably through his attorney, that a motion to dismiss had been filed and to schedule another hearing to determine whether the matter should be dismissed in some fashion. Practice Book § 23-29 (5) provides that the court may at any time dismiss the petition if it determines that, among other reasons, “any . . . legally sufficient ground for dismissal of the petition exists.” A habeas corpus action, as a variant of civil actions, is subject to the ordinary rules of civil procedure, unless superseded by the more specific rules pertaining to habeas actions. In Fuller v. Commissioner of Correction, 75 Conn. App. 814, 817-19, 817 A.2d 1274, cert. denied, 263 Conn. 926, 823 A.2d 1217 (2003), for example, we held that a dismissal for lack of due diligence in prosecuting the case pursuant to Practice Book § 14-3 was a legally sufficient ground for dismissal of a habeas corpus action and fell under the catchall “other legally sufficient ground” provision of Practice Book § 23-29 (5). Similarly, a failure to appear for trial may result in an immediate nonsuit pursuant to Practice Book § 17-19; a nonsuit so entered ends the case unless there is a subsequent motion to open. See, e.g., Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 359, 519 A.2d 76 (1986).

It is true, as pointed out by the majority, that a habeas petitioner has a right to be present at any evidentiary hearing and any argument on a question of law that may be dispositive of the case, unless the petitioner waives the right. Practice Book § 23-40; see also Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 726 n.5, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006); Mercer v. Commissioner of Correction, 230 Conn. 88,93,644 A.2d340 (1994). The more common posture in habeas actions is that the petitioner is in the custody of the commissioner, who has a duty to deliver the body to court; indeed, “habeas corpus” means “you have the body.” This court has held that legal arguments may be held in the absence of the petitioner when his presence cannot be compelled by statute or interstate compact, despite the language of Practice Book § 23-40. Hickey v. Commissioner of Correction, 82 Conn. App. 25, 37-40, 842 A.2d 606 (2004), appeal dismissed, 274 Conn. 553, 876 A.2d 1195 (2005). Actual physical presence is not, then, categorically required for the court to act. The petitioner in the present case undoubtedly had the right to be present in court when the discussion regarding dismissal occurred; the case was terminated because he (or counsel) was not present. In light of the authority cited above and the standard practice of our courts, a litigant ought to anticipate that not showing up may result in the dismissal of the case. See, e.g., Osborne v. Osborne, 2 Conn. App. 635, 638, 482 A.2d 77 (1984). In the circumstances here, I believe that the habeas court had the discretion to render judgment in favor of the respondent when neither the petitioner nor his counsel appeared for a trial that had been duly scheduled.

The habeas court, however, ordered a dismissal “with prejudice.” Although there may be some ambiguity in the phrase “with prejudice,” it appears from the court’s summary denial of the motion to open and to vacate the judgment and the explanation in its articulation of the denial that no recourse was possible. In any event, it is clear that the petitioner was not extended the right to be present at the time the motion was decided. Because a substantial right of the petitioner was at stake in the motion to open and to vacate the judgment, he should have been afforded the opportunity to be present. Mitchell v. Commissioner of Correction, supra, 93 Conn. App. 724-26.

Accordingly, I would reverse the judgment of the habeas court on the petitioner’s motion to open and to vacate the judgment and would remand the case for a hearing on that motion.

       The scheduling order indicated that the dates contained therein were “firm dates” that could be modified only by filing a motion to modify and that failure to comply with the order could result in “sanctions, [¡Judgment of [djismissal or [djefault.” On the next day, April 9, 2008, the court issued another order confirming the trial date of August 12, 2008, and stating: “Parties must be prepared to go forward. Failure to appear may result in judgment of dismissal or default. . . . Motions for continuance must be filed in writing at least [seven] business days before the scheduled event and will only be granted under exceptional circumstances.”

       In support of the motion to modify the scheduling order, the petitioner’s counsel stated that he needed additional time to complete discovery in order to “adequately represent the petitioner.”

       At the time of the habeas trial, the petitioner was no longer in the custody of the respondent.

         On August 21,2008, counsel had filed a “motion re: contempt and cause,” explaining the personal circumstances giving rise to his motion to modify the scheduling order and his failure to appear for trial. The court granted the motion and vacated its show cause order.

       The petitioner also claims that he was deprived of his constitutional and statutory rights. Because we agree that the court violated Practice Book § 23-40, we need not address the petitioner’s additional claims.

       Practice Book § 14-3 provides in relevant part that dismissal for lack of due diligence requires at least two weeks notice, “except in cases appearing on an assignment list for final adjudication. . . .” (Emphasis added.)

       For the purpose of this opinion, I find no meaningful distinction between “nonsuits” and “dismissals.”

       The scheduling order in the trial court provided that failure to comply could result in dismissal.

       The request of the petitioner’s counsel for a continuance had been denied and notice of the denial sent. The basis for the request was, essentially, that counsel did not yet have the information he felt that he needed for trial. He had not communicated any personal circumstance, such as the relative’s illness, which perhaps for humane reasons might have justified a continuance.

       Videoconferencing could conceivably satisfy the requirement that a petitioner be “present.”

       I would leave for another day and factual context the question of what standards apply to such a motion.


author: BEAR, J.

text:
    DARRELL ATKINSON v. COMMISSIONER OF CORRECTION
    (AC 30634)
    Bishop, Lavine and Bear, Js.

      Argued September 24
    officially released December 21, 2010

      Edward G. McAnaney, special public defender, for the appellant (petitioner).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

In this “habeas on a habeas,” the petitioner, Darrell Atkinson, appeals following the denial of his petition for certification to appeal from the judgment denying his amended second petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying certification to appeal and improperly rejected his claim that counsel in his first habeas trial had been ineffective. We dismiss the appeal.

The following facts are relevant to our resolution of the petitioner’s appeal. In the underlying criminal matter, the petitioner was charged initially with the crimes of felony murder, robbery in the first degree, conspiracy to commit robbery in the first degree and attempt to commit assault in the first degree. The crimes occurred on February 27, 1992, and the petitioner was arrested by warrant in March, 1992. Thereafter, he was charged with the crimes of escape in the first degree, assault in the second degree and possession of a weapon in a correctional institution. These crimes occurred on February 1,1993. The matters were consolidated for trial.

In these underlying criminal matters, the petitioner was represented by attorney Thomas Conroy. Following a jury trial, the petitioner was convicted of felony murder, robbery in the first degree, conspiracy to commit robbery in the first degree, attempt to commit assault in the first degree, escape in the first degree and assault in the second degree. The court imposed a total effective sentence of ninety-five years imprisonment. Our Supreme Court upheld the conviction in State v. Atkinson, 235 Conn. 748, 670 A.2d 276 (1996).

Following the unsuccessful appeal of his conviction, the petitioner brought his first petition for a writ of habeas corpus (first petition), claiming innocence in fact and ineffective assistance of counsel by Conroy. The petitioner alleged that Conroy had failed (1) to impeach the state’s witnesses who had attempted to establish the petitioner’s presence at the scene of the incident and (2) to call alibi witnesses. A habeas trial was held on July 8 and 23, 1999. The petitioner was represented at the habeas trial by attorney Robert McCoy.

At the habeas trial on the first petition, the petitioner testified, and he called Conroy to testify along with three potential alibi witnesses: correction officer James Outlaw; Margaret Atkinson Ocasio, the petitioner’s mother; and Tomeka Hardy, the petitioner’s girlfriend at the time. Conroy testified that he had filed a motion to suppress a statement made by the petitioner that he was at the scene of the crime but that the court had denied the motion. Consequently, Conroy’s strategy at trial was to establish that, although the petitioner was present at the scene, he was a spectator and not the shooter. Conroy believed it would not be effective to have the alibi witnesses testily when the petitioner had given a statement to the police that contradicted the statements of these witnesses.

At the close of evidence at trial on the first petition, the habeas court ordered the attorneys to file posttrial memoranda. McCoy, however, failed to file the posttrial memorandum as required by the court. Nevertheless, the habeas court denied the petition by memorandum of decision, concluding that the petitioner had “failed to meet his burden of proof for a new trial” and that Conroy’s decision not to call alibi witnesses was “a reasonable professional judgment.” The petitioner appealed from that judgment, and this court dismissed the appeal. Atkinson v. Commissioner of Correction, 67 Conn. App. 902, 786 A.2d 545 (2001), cert. denied, 259 Conn. 929, 793 A.2d 252, cert. denied, 536 U.S. 944, 122 S. Ct. 2630, 153 L. Ed. 2d 811 (2002).

The petitioner later filed a complaint against McCoy with the statewide grievance committee, and McCoy was reprimanded by the committee for failure to file the posttrial memorandum. On November 2, 2004, the petitioner brought this second petition for a writ of habeas corpus (second petition). In an amended petition, filed September 29, 2008, the petitioner claimed ineffective assistance of counsel on the part of McCoy due to his failure to file the posttriai memorandum as required by the habeas court.

The second petition was tried on November 12, 2008, and the petitioner appeared pro se. He offered, as evidence, the decision of the statewide grievance committee reprimanding McCoy. The respondent, the commissioner of correction, objected to the document’s being admitted as a full exhibit, and the court sustained the objection, holding that the decision was irrelevant and did not “address any of the merits of the prior habeas petition and does not in any way indicate that attorney McCoy was ineffective.”

Following the trial, the habeas court denied the petition by oral ruling. The court stated that the petitioner had “not established prejudice by any omission or failure on the part of attorney McCoy to not file a brief.” Further, it was “clear from a read of the memorandum of decision by Judge Meadow [the judge at the trial of the first petition] and a review of the transcript of the proceedings that the petitioner was, in fact, afforded a full opportunity to present his petitions, which addressed claims regarding conduct of his trial counsel.” The court noted that Judge Meadow heard testimony from five witnesses and that it did not “appear that the issue of the brief or failure to file a brief was in any way dispositive of [his] ruling in the [first] petition in which [he] denied the petition.”

The petitioner filed a petition for certification to appeal on November 26, 2008. On December 4, 2008, the habeas court denied the petition for certification but granted the waiver of fees and appointed counsel for the appeal. This appeal followed.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., 612. “We examine the petitioner’s underlying claimjs] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal.” (Internal quotation marks omitted.) J.R. v. Commissioner of Correction, 105 Conn. App. 827, 831, 941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976 (2008). A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000). “A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. . . . Put another way, the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Sastrom v. Mullaney, 286 Conn. 655, 662, 945 A.2d 442 (2008). With respect to the prejudice component, “[i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings.” (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 799, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413 (2004), cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004). “Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” King v. Commissioner of Correction, 73 Conn. App. 600, 602-603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). “A court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” Nieves v. Commissioner of Correction, 51 Conn. App. 615, 620, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).

The petitioner alleges that the habeas court’s refusal to grant his request for certification to appeal constitutes an abuse of discretion. The petitioner further alleges that the habeas court incorrectly decided his second petition because (1) McCoy was ineffective and (2) McCoy’s failure to file the posttrial memorandum prejudiced the petitioner.

We first, therefore, examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. The petitioner’s burden is to demonstrate that there is a reasonable probability that, but for McCoy’s failure to file the posttrial memorandum, his first petition for habeas corpus would have been granted. Although there is no question that McCoy should have filed the posttrial memorandum as required by the court, the record does not indicate that McCoy’s failure to file the memorandum had any impact on the court’s decision to deny the first petition.

The petitioner cites State v. Weber, 221 Conn. 84, 602 A.2d 963 (1992), to support his claim that an attorney’s failure to file a brief is likely to amount to ineffective assistance and deprive a defendant of some of his constitutional rights. In Weber, our Supreme Court affirmed this court’s dismissal of an appeal that had resulted from defense counsel’s failure to file his brief within the time allowed. The court noted that the dismissal “cannot be permitted to deprive the defendant of his constitutional right to appellate review of his conviction on the merits. The dismissal does terminate the present appeal, but it does not bar the defendant from proceeding with a habeas corpus petition seeking the opportunity to file a new appeal. As the basis for such a petition under the circumstances of this case would ordinarily be the ineffective assistance of counsel, his present counsel would not be likely to represent the defendant in a new appeal. Whether or not there is justification for present counsel’s inordinate delay in filing a brief, his services in this appeal may well have been ineffective and the defendant may have been deprived of his constitutional rights.” Id., 86-87.

The facts of Weber are distinguishable from the present case. In Weber, this court’s dismissal of the defendant’s appeal was a direct result of defense counsel's failure to file a brief. In the present case, the record is clear that the petitioner’s first petition was not denied on that basis. After having been given the opportunity to present evidence regarding his first petition during a two day proceeding in which the court heard testimony from five of the petitioner’s witnesses, the court wrote a comprehensive memorandum of decision. The court addressed the witnesses’ testimony and determined that, from the evidence adduced at trial, the petitioner had failed to meet his burden. McCoy’s failure to file a posttrial memorandum did not impede the habeas court in considering the petitioner’s claims and rendering its decision. Unlike Weber, the court in this case considered the evidence and rendered judgment on the merits of the case. Accordingly, the petitioner has not established that he was prejudiced in any way by McCoy’s omission. He, therefore, has not established his claim of ineffective assistance of counsel.

Having reviewed the record, and for the reasons set forth previously, we conclude that the petitioner failed to establish that the issues he has raised are debatable among jurists of reason, that a court could have resolved them in a different manner or that the questions he has raised are adequate to deserve encouragement to proceed further. Accordingly, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The facts of the underlying criminal matter are set forth in State v. Atkinson, 235 Conn. 748, 670 A.2d 276 (1996).

       We construe this to be a claim of actual innocence. See Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994).

       The denial of the motion to suppress was addressed by our Supreme Court in State v. Atkinson, supra, 235 Conn. 753-61.

       With respect to the second petition, the petitioner was appointed a special public defender who filed an appearance on December 28, 2004. On December 4, 2007, the petitioner’s special public defender filed a motion to withdraw his appearance. The motion to withdraw was granted by the court on March 19, 2008. The petitioner thereafter proceeded pro se. Counsel, however, was appointed for the purposes of this appeal.

       The petitioner also alleged ineffective assistance of habeas counsel for failing to investigate adequately information regarding Detective Joseph Green of the New Haven police department; ineffective assistance of habeas counsel for failing to research and claim ineffective assistance of trial counsel for failing to object to an unconstitutional jury instruction and ineffective assistance of appellate counsel for failing to raise the issue on appeal; and ineffective assistance of trial counsel for falling to investigate Green or failing to cross-examine Green on aspects of claimed perjured testimony. The petitioner does not address these claims in his brief, and, therefore, they are deemed abandoned. See State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007).

       See also, e.g., Biller Associates v. Peterken, 269 Conn. 716, 722, 849 A.2d 847 (2004) (“The Rules [of Professional Conduct] are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability ” [Internal quotation marks omitted.]).