author: BEAR, J.

text:
    LYDIA J. MELE v. CITY OF HARTFORD ET AL.
    (AC 32728)
    Bishop, Bear and Pellegrino, Js.

      Argued April 27
    officially released July 5, 2011

      Anne Kelly Zovas, for the appellants (defendants).

      Lydia J. Mele, pro se, the appellee (plaintiff).
   Opinion

BEAR, J.

The defendants, the city of Hartford (Hartford) and its insurer, Constitution State Service Company/Travelers Insurance (Travelers), appeal from the decision of the workers’ compensation review board (board) reversing in part the decision of the workers’ compensation commissioner for the first district (commissioner), which had dismissed the claims of the plaintiff, Lydia J. Mele, concerning a wheelchair that had been provided to her by the defendants. On appeal, the defendants claim that the board improperly substituted its findings for those made by the commissioner. We disagree and, therefore, affirm the decision of the board.

Certain underlying facts are not in dispute. As a result of work related injuries, the plaintiff required the use of a wheelchair. In 2007, Travelers, through Brian Rossi of Connecticut Rehab & Medical Products, Inc. (Connecticut Rehab), evaluated the plaintiffs need for a new wheelchair. Eventually, Rossi and Scott Dyson, who also was employed by Connecticut Rehab, determined that the plaintiff should receive a Quantum 600 wheelchair. The plaintiff almost immediately had problems with the new Quantum 600 wheelchair, so she sought its modification or replacement, which was denied by Travelers.

The matter was brought to a formal hearing before the commissioner on October 7, 2008, and January 6, 2009, in which the plaintiff claimed that the defendants should be required to modify or replace the new wheelchair and that they unduly had delayed the administration of her claim. During the hearing, the plaintiff testified that she had been employed by Hartford as a teacher and guidance counselor for more than thirty years. She sustained injuries to her knees, shoulders, back, wrist and elbow in 1985; Gordon A. Zimmerman is her treating physician for those injuries. She sustained ankle injuries in 1988; Michael S. Aronow is her treating physician for those injuries. The plaintiff injured her neck, thoracic spine, lumbar spine, shoulders, wrist and elbow in 1990; her treating physician for those injuries is Gerald J. Becker. The plaintiff testified that, due to her injuries, all three other treating physicians prescribed a motorized wheelchair for her. The defendants in 2003 or 2004 provided her a wheelchair. However, the first wheelchair she received was unsuitable for sustained use because it was designed only for indoor use, and she needed it for outdoor use as well. Travelers’ wheelchair vendor at the time, Hudson Health, had to install replacement motors in the wheelchair on at least two occasions.

As set forth previously, in 2007, the plaintiff met with Rossi, the representative of Travelers’ new wheelchair vendor, Connecticut Rehab, for the purpose of obtaining a new wheelchair. The plaintiff testified that she repeatedly told Rossi that she needed a high-back wheelchair with lumbar support and that one of her physicians had prescribed lumbar support. She stated that Rossi said he did not need a copy of the prescriptions unless the request for a new chair was denied. Rossi, however, testified that the plaintiff never mentioned the prescriptions or the need for lumbar support before getting the new wheelchair.

In June, 2007, Connecticut Rehab delivered to the plaintiff a Quantum 600 wheelchair. Almost immediately, the plaintiff complained that the wheelchair was not suitable for her needs and that it had no tie-down straps for transportation. She stated that the wheelchair rattled, the seat was moving and it was causing her great back pain because it had no lumbar support. She also thought the chair portion of the wheelchair was too big for her. Rossi made several attempts to make the wheelchair more suitable for the plaintiff: First, he arranged for tie-down straps to be installed on the wheelchair, which were necessary to transport the wheelchair in a wheelchair van; second, he attempted to fix the chair with duct tape, and third, he tried to attach two different lumbar support pads to the chair. None of these fixes were suitable for the plaintiffs needs, and she continued to complain of back pain associated with her use of the new wheelchair. The plaintiff explained during the hearing that there was a large gap in the back of the wheelchair seat and that any attempt to attach a lumbar support pad was unsuccessful because of the gap and the concave shape of the chair back. She also stated that the shape of the chair did not permit her to sit upright, which also caused back pain. Furthermore, the plaintiff testified that she is unable to use the Quantum 600 in her home because it did not fit in her kitchen or bathroom.

Because Rossi was unable to fix the chair to meet the needs of the plaintiff, he referred her to a physical therapist. Rossi specifically testified that he “decided that [he] was not going to be able to solve some of [the plaintiffs] seating issues and that [they] should involve a physical therapist at this point to get the professional and clinical knowledge that a therapist would bring to the table.” He testified that he “recognized that [the plaintiff] may be having . . . further medical issues . . . [and that] the seat that she’s currently in may not be meeting her medical needs.” On September 27, 2007, the plaintiff met with Paul Zelinsky at Eastern Connecticut Health Network, Inc. Zelinsky recommended that the Quantum 600 be modified to suit the plaintiffs medical needs. Becker, one of the plaintiffs treating physicians, also recommended that the wheelchair be modified.

The commissioner suggested that the plaintiff be evaluated at Gaylord Hospital in Wallingford for another wheelchair assessment, but she did not act on that suggestion.

During the hearing before the commissioner, Rossi, who at the time of the hearing was certified as an assistive technologies practitioner but who had not yet received such certification when he met with the plaintiff and ordered her wheelchair, testified that he did not think that Zelinsky possessed the necessary qualifications to match patients with wheelchairs appropriate for their needs.

After the hearing, the commissioner issued a written decision on August 25, 2009. The commissioner found that the plaintiff was basing her request for modifications to the Quantum 600 wheelchair on the assessments of Zelinsky and Becker, but that those assessments were not credible or persuasive because there was no evidence that either Zelinsky or Becker had specialized knowledge as to what specific wheelchair equipment was suitable for the plaintiff. The commissioner also found that the plaintiffs testimony that she had told Rossi that she needed lumbar support was not credible. Additionally, the commissioner found, in part on the basis of his “personal observations,” that the plaintiff has the ability to ambulate and that “[h]er complaints of discomfort are subjective and exaggerated.” The commissioner concluded that the plaintiff had not met her burden of proving that the modifications were medically necessary or reasonable. Accordingly, he dismissed the plaintiffs claim for modification or replacement of the Quantum 600 wheelchair. The commissioner also dismissed the plaintiffs claim that the defendants unduly had delayed the administration of her request for modification or replacement of the Quantum 600. The plaintiff appealed this decision to the board.

The parties participated in oral argument before the board on March 26, 2010. In a written decision dated September 13,2010, the board agreed with the plaintiffs contention that the commissioner erred in dismissing as not credible the opinions of Becker and Zelinsky on the issue of medical necessity. The board reviewed the report submitted by Zelinsky, which “indicate[d] that Zelinsky began by identifying the [plaintiffs] numerous orthopedic injuries and then proceeded to itemize the deficiencies present in the [plaintiffs] current chair. Zelinsky concluded his report by reciting a number of modifications necessary to directly address the [plaintiffs] complaints regarding the chair.” The board also reviewed the report of Becker, in which Becker stated that he had reviewed Zelinsky’s report and that he agreed that modifications to the wheelchair were necessary. The board further reviewed the additional notes of Becker from various dates in 2007 and 2008, “all of which reference [d] the [plaintiffs] need for seating modifications” and Becker’s prescriptions from September and November, 2000, which specifically prescribed lumbar support for the plaintiff. After reviewing this evidence and the other evidence presented to the commissioner, the board concluded that the commissioner had drawn unreasonable inferences, especially regarding Zelinsky and Becker, and that the commissioner’s conclusions could not be sustained. Accordingly, the board reversed the commissioner’s dismissal of the plaintiffs claim that she was entitled to a new wheelchair or to modifications of the Quantum 600. See footnote 1 of this opinion. This appeal followed.

On appeal, the defendants claim that the board improperly substituted its judgment for that of the commissioner. We disagree.

“We begin by setting forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. . . . The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner .... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

“This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Williams v. State, 124 Conn. App. 759, 763-64, 7 A.3d 385 (2010).

On appeal, the defendants argue that the “board has improperly concluded that the [plaintiff] had met her burden of proof by convincing evidence so as to entitle her to the replacement wheelchair she was requesting and further, that the board has overstepped its bounds by reversing the trial commissioner’s findings of fact and substituting its own findings.” We do not agree.

In its written decision, the commissioner found that the opinions contained in the written reports of Zelinsky and Becker were not credible because there was no evidence that Zelinsky or Becker had “any specialized knowledge as to what specific wheelchair equipment is medically necessary for the [plaintiff].” The commissioner also found that Zelinsky’s “qualifications are unknown” and that Becker merely had “adopted” the recommendations of Zelinsky. It is evident from reading the commissioner’s decision, that he based his conclusion that the plaintiff had not met her burden of proof, in large part, on these specific findings. The board concluded that these findings were unreasonable and unsupported. We agree.

Although Rossi had testified before the commissioner that he did not believe that Zelinsky was qualified to match a patient with an appropriate wheelchair, there is nothing in the record to demonstrate a basis for Rossi’s belief. The record is devoid of any attempt by the defendants to challenge the qualifications of either Zelinsky or Becker. Further, Rossi admitted that he had advised the plaintiff to seek out the assistance of a physical therapist because a physical therapist would supply needed “professional and clinical knowledge.” He also stated that although he generally works with a physical therapist in designing a suitable wheelchair for a patient, he did not do so in this case; no explanation was offered as to why, in this particular case, he failed to follow his normal procedure.

Furthermore, as to the commissioner’s finding that Zelinsky’s qualifications were unknown, a review of Zelinsky’s November 15, 2007 report reveals that Zelinsky works at Eastern Connecticut Health Network, Inc., which has several locations, including Manchester Memorial Hospital, Rockville General Hospital, Wood-lake at Tolland Nursing & Rehabilitation Center and the Women’s Center for Wellness. Zelinsky’s report further reveals that he is a physical therapist, with a master of science degree, and that he is the manager of rehabilitation services at Evergreen Walk. Accordingly, his qualifications were not unknown. In Zelinsky’s report, he states that he was asked by Connecticut Rehab to consult on the plaintiffs wheelchair modifications, although the report does not reveal the name of the person who made that request. The report lists several of the plaintiffs existing diagnoses and then states that Zelinsky thoroughly reviewed the existing configuration of the wheelchair “in consultation with [a] representative from CT Rehab” and that they indentified several problems. The report explains the problems with the existing configuration of the Quantum 600 wheelchair and then lists several modifications that are necessary to “ensure proper seat positioning and support . . . .” The report also states that a copy was sent to Rossi.

As to the commissioner’s finding that Becker had relied on Zelinsky’s report to reach his conclusion that modifications to the plaintiffs wheelchair were medically necessary and that there was no evidence that Becker had “any specialized knowledge as to what specific wheelchair equipment is medically necessary for the [plaintiff],” we also conclude that these findings are not supported by the evidence, and, in fact, are contrary to the evidence. The plaintiffs medical records from Becker’s office were in evidence before the commissioner. These records reveal that Becker is a medical doctor who is a professional employee of Orthopedic Associates of Hartford, PC (Orthopedic Associates). His stationery shows that Orthopedic Associates specializes in “spinal surgery, arthroscopy, hand surgery, joint replacement, sports medicine, foot surgery [and] trauma.” The records reveal that the plaintiff has been a patient of Becker since at least 1990. In September, 2000, Becker prescribed a chair with lumbar support for the plaintiff. In November, 2000, Becker prescribed a “scooter with high lumbar support with padding.” In September, 2001, Becker again prescribed a lumbar chair for the plaintiff. In October, 2007, Becker wrote a report stating that the plaintiff continued to have thoracic pain and that she needed lumbar support. He stated that he previously had prescribed a lumbar support chair for her and that “the current chair does not provide the support that she needs.” The report also stated that the plaintiff “does require chair modification.” This report was authored by Becker in October, 2007; we note that Zelinsky’s report was authored in November, 2007.

On December 11, 2007, Becker wrote another report in which he stated that the plaintiff had been under his care for her back condition. He stated that the plaintiff has problems with her wheelchair and that they specifically “deal with the degree of lumbar support that she has, the fact that she is in a kyphotic position when she sits, and the fact that her pelvic tilt is not appropriate when she is sitting in the chair. She requires a change in her seat length to avoid pressure on her knees, and she requires moveable leg rests so that her legs will not be in a dependent position, as she has edema of her lower extremities.” The report then states that Becker has reviewed the Zelinsky recommendations and that he agrees that the plaintiffs wheelchair needs modification. He also listed the modifications that in his medical opinion were “necessary.”

The plaintiff again was seen by Becker in April, 2008, specifically for a follow-up visit. In the report generated as a result of that visit, Becker, in relevant part, “recommend[ed] seating modification to give [the plaintiff] more appropriate support for her thoracic and lumbar spine, as well as her neck.” In a report generated after the plaintiffs next follow-up visit, dated July 30, 2008, Becker again recommended “chair modifications to enable [the plaintiff] to sit more comfortably.”

Despite receiving these reports into evidence, the commissioner failed to discuss any of the reports by Becker, except that he stated they were not credible because they were based on Zelinsky’s recommendations. We find nothing in the reports of Becker, which date back to 1998, and, which, beginning in 2000, repeatedly state that the plaintiff needs a chair with, inter alia, lumbar support, that indicates that Becker is relying on Zelinsky’s recommendations rather than his own medical opinion. Furthermore, there is nothing in the record that demonstrates that Zelinsky was not qualified to offer a recommendation in this case, especially in light of Rossi’s testimony that he generally works with a physical therapist before designing a wheelchair for a patient and that a physical therapist would provide necessary “professional and clinical knowledge.” On the basis of the evidence presented to the commissioner, we agree with the board that the commissioner’s findings were not supported by the evidence and that his conclusions, therefore, were unreasonable.

The decision of the workers’ compensation review board is affirmed and, because of the amount of time that has passed, the matter is remanded to the board with direction to remand the case to a commissioner for a determination of whether there should be modifications to the plaintiffs Quantum 600 wheelchair or whether a new wheelchair should be provided to her.

In this opinion the other judges concurred.

       The board’s decision states that the commissioner’s decision is reversed. We note, however, that the board did not reverse the commissioner’s decision in its entirety, but, rather, affirmed that portion of the decision dismissing the plaintiffs claim of undue delay. The plaintiff has not filed a cross appeal challenging that aspect of the decision. Accordingly, it is not before us.

       Connecticut Rehab is now known as ATG Rehab. For purposes of this opinion, however, we continue to use the name Connecticut Rehab.

       The plaintiff had two prescriptions from Becker that were dated in the year 2000, specifically stating that the plaintiff needed a wheelchair with lumbar support.

       Rossi stated that he had received his training from “RESNA,” but that he could not remember the meaning of the acronym. It is unclear if “RESNA” is the entity from which he received his certification. He also testified that “RESNA” is “a national organization [that] accredits all assistive technology supplier^] [and that] Medicare . . . require [s] that in order to provide assistive technology devices, such as high-end rehab, that you have a certification . . . .”

       In its written decision, the board concluded that these statements should be stricken because they were unsupported and improper: “We note that the numerous voluntary agreements in the file and voluminous medical record[s] clearly attest to the extent of the claimant’s injuries; moreover, given that the [defendants] have accepted the claimant’s need for a wheelchair ... we hold that the trial commissioner’s statement ... is improper and should be stricken.”

       The board also noted that Zelinsky’s report indicated that his assessment was completed in consultation with a representative from Connecticut Rehab; the name of that consultant, however, was not disclosed in the report.

       The report does not specify with whom Zelinsky consulted. However, Rossi testified that he met with Zelinsky and the plaintiff twice.

       We also take this opportunity to comment, as did the board, on the plaintiffs failure to act on the commissioner’s suggestion that she obtain an assessment at Gaylord Hospital. Although the commissioner did not base his decision on the plaintiffs failure to pursue this suggestion, we point out that General Statutes § 31-294Í (a) requires a claimant to submit to “examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. . . .” It does not appear from the record, however, that the commissioner “directed” the plaintiff to obtain an assessment. Rather, the transcript reveals that he characterized this as a “suggestion.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MARY MARGARET FARREN v. J. MICHAEL FARREN
    (AC 32160)
    DiPentima, C. J., and Lavine and Schaller, Js.
    Argued May 18
    officially released June 7, 2011
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MAURICE BLACK
    (AC 31332)
    Robinson, Bear and Espinosa, Js.
    Argued May 17
    officially released June 7, 2011
   Per Curiam.

The judgment is affirmed.


text:
    LAMBERTO LUCARELLI v. FREEDOM OF INFORMATION COMMISSION
    (AC 32700)
    Robinson, Bear and Espinosa, Js.
    Argued May 17
    officially released June 7, 2011
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. BRIAN L. S.
    (AC 31711)
    Lavine, Bear and Borden, Js.
    Argued May 23
    officially released June 7, 2011
   Per Curiam.

The judgment is affirmed.


text:
    PATRICIA JOLLY v. BROADSPIRE SERVICES, INC., ET AL.
    (AC 32598)
    DiPentima, C. J., and Robinson and Schaller, Js.
    Argued May 24
    officially released June 14, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT JOHN WHITE v. ESTATE OF MICHAEL A. WHITE
    (AC 32835)
    Bishop, Robinson and Borden, Js.
    Argued June 1
    officially released June 21, 2011
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES BIVONA v. ROBERT BIVONA
    (AC 32176)
    Lavine, Robinson and Peters, Js.
    Submitted on briefs May 31
    officially released June 21, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ROGER COTE v. COMMISSIONER OF CORRECTION
    (AC 31909)
    Gruendel, Lavine and Bear, Js.
    Argued May 26
    officially released June 21, 2011
   Per Curiam.

The appeal is dismissed.


text:
    WESTERN SURETY COMPANY v. RONALD F. BOZELKO ET AL.
    (AC 32182)
    Bishop, Beach and Sullivan, Js.
    Argued May 31
    officially released June 21, 2011
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY TATE v. COMMISSIONER OF CORRECTION
    (AC 30807)
    DiPentima, C. J., and Gruendel and Lavine, Js.
    Submitted on briefs May 27
    officially released June 21, 2011
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. TERESA J.
    (AC 31418)
    Gruendel, Beach and Peters, Js.
    Argued June 2
    officially releasedJune 21, 2011
   Per Curiam.

The judgment is affirmed.


text:
    RAYMOND APONTE v. COMMISSIONER OF CORRECTION
    (AC 31824)
    Gruendel, Beach and Peters, Js.
    Argued June 2
    officially released June 21, 2011
   Per Curiam.

The appeal is dismissed.


text:
    LUIS FERNANDEZ v. CHARIE VILLAVICENCIO
    (AC 32203)
    Graendel, Beach and West, Js.
    Argued June 3
    officially released June 21, 2011
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM CYRTA v. COMMISSIONER OF CORRECTION
    (AC 31992)
    Beach, Bear and Espinosa, Js.
    Submitted on briefs May 27
    officially released June 28, 2011
   Per Curiam.

The appeal is dismissed.


text:
    RICK FELIX v. COMMISSIONER OF CORRECTION
    (AC 31553)
    Beach, Bear and Espinosa, Js.
    Submitted on briefs May 27
    officially released June 28, 2011
   Per Curiam.

The appeal is dismissed.


author: Bieluch, J.

text:
    Brian F. Edwards et al. v. Code Enforcement Committee of the Town of Vernon
    (5386)
    Dupont, C. J., Spallone and Bieluch, Js.
    Submitted on briefs September 1 —
    decision released December 15, 1987

      Jose R. Ramirez filed a brief for the appellants (plaintiffs).

      Mitchel E. Kallet, town attorney, filed a brief for the appellee (defendant).
   Bieluch, J.

The plaintiffs, Brian F. Edwards and First Edwards Realty Corporation, have appealed from the dismissal of their administrative appeal on motion of the defendant for failure to make service in accordance with General Statutes § 52-57. We find no error.

The plaintiffs are owners of real estate at various locations in the town of Vernon. Under the terms of the town housing ordinance; Ordinance No. 105, as amended by Ordinance No. 139; they were cited by the housing code inspector for alleged code violations on their properties. Pursuant to the provisions of the ordinance, an appeal was taken to the code enforcement committee, which confirmed the inspector’s findings and ordered that the violations be corrected. Claiming to be aggrieved by this decision because they will be compelled to make property repairs and improvements, or else face criminal sanctions, the plaintiffs appealed to the trial court expressly “[p]ursuant to Section 4-183, Connecticut General Statutes.” Service of the petition was directed to be made upon the agency through its chairman or clerk. The return of service recited that “the petition for judicial review pursuant to § 4-183” was served upon the chairman of the code enforcement committee.

The defendant filed a motion to dismiss the appeal due to the insufficiency of service of process, alleging that since service was made upon the chairman of the agency, it was not made pursuant to General Statutes § 52-57, which requires that process in a civil action against a town must be served upon one of its specified officials. The motion to dismiss the appeal was granted without a written memorandum of decision. The sole issue on appeal is whether the trial court erred in finding that the defendant was not an “agency” within the meaning of § 4-183 (b) of the Uniform Administrative Procedure Act (UAPA) for purposes of judicial review of its actions.

The UAPA, General Statutes §§ 4-166 through 4-189, applies only to state agencies by virtue of § 4-166 (l). The plaintiffs maintain that the defendant is a state agency because the town housing code; Ordinance No. 105, as amended by Ordinance No. 139; gives it responsibility for enforcing certain provisions of the State Tenement House Act; General Statutes §§ 19a-356 through 19a-365; the State Building Code; General Statutes §§ 29-251 through 29-282; the State Fire Safety Code; General Statutes §§ 29-291 through 29-370; and the Landlord and Tenant Act. General Statutes §§ 47a-1 through 47a-20a. In addition, they claim that Ordinance No. 122 designates the housing code inspector, whose actions are reviewed by the defendant, “as another authority to exercise concurrent jurisdiction with the Board of Health to enforce the provisions of [General Statutes §§ 47a-50 through 47a-61] within the Town of Vernon.”

It is the claim of the plaintiffs that notwithstanding that the defendant is appointed by the town’s mayor with the approval of a majority of the town council, it is a state agency within the purview of the UAPA by virtue of its powers and responsibilities under the specified general statutes. Quoting Catholic Family & Community Services v. CHRO, 3 Conn. App. 464, 467, 489 A.2d 408 (1985), the plaintiffs maintain that the defendant is a state agency because it “ ‘is a body in which the legislature has reposed general powers of administration of a particular state program in connection with which it has been given statutory authority to act for the state in the implementation of that program.’ ”

The plaintiffs’ rationale for proceeding under the UAPA is further expressed as follows: “As plaintiff[s] knew that the Legislature had deleted from Section 4-183 (b), via Public Act 79-163, the requirement that service of process in administrative appeals be carried out in accordance with the provisions for service of process in civil actions, and had substituted therefor the existing provision which clearly mandates service upon the agency, [they] sought to advise the agency that its actions, as opposed to any action by the Town, [were] being appealed.” The plaintiffs also seek to distinguish their appeal from a civil action against the town by relying upon § 36 of Ordinance No. 139, which provides: “Any person aggrieved by a decision of the Housing Code Inspector may seek relief therefrom in any court of competent jurisdiction in accordance with the general provisions of the Statutes relating to appeals from municipal commissions, boards and committees.”

The defendant maintains that it is a town agency enforcing the local housing code in the exercise of the town's police power, and, therefore, it is not a state agency within the provisions of the UAPA.

The housing code in question is contained in Ordinance No. 105, as amended by Ordinance No. 139. Its designated purpose is to regulate supplied facilities, maintenance and occupancy of dwellings, dwelling units, rooming houses and rooming units. The “Scope” of this code is contained in the introductory statement, which provides: “The provisions of this ordinance shall apply uniformly to the construction, maintenance, use and occupancy of any structure or building containing a dwelling unit where applicable, and shall apply uniformly to the alteration, repair, equipment, use, occupancy, and maintenance of any existing braiding or structure containing a dwelling unit within the jurisdiction of the Town of Vernon irrespective of when or under what code or codes such buildings or structures were originally constructed or rehabilitated. The provisions of the Housing Code are supplemented in some instances by the State Tenement House Act, [General Statutes §§ 19a-356 through 19a-365]; The State Basic Building Code, [General Statutes §§ 29-251 through 29-282]; the State Fire Safety Code, [General Statutes §§ 29-291 through 29-370]; and the Landlord and Tenant Act, [General Statutes §§ 47a-l through 47a-61].” The housing code inspector administers and enforces this housing code. Appeals from his actions may be taken to the code enforcement committee, which consists of the building board of appeals. Chapter VIII, § 4, of the town charter provides for the appointment of this board by the mayor with the approval of a majority of the town council.

The plaintiffs construe the “Scope” of the housing code as incorporating the cited statutes into the housing code, thereby converting the defendant into a state agency enforcing state laws. They apply the same legal analysis to Ordinance No. 122, which designates the housing code inspector as another authority to exercise concurrent jurisdiction with the board of health to enforce the provisions of General Statutes §§ 47a-50 through 47a-61.

The issue raised by the plaintiffs calls for a review of the relationship between the municipal ordinances and state statutes on common subjects of building regulations and public health and safety within municipal territorial limits. General Statutes § 7-148 (c) provides: “Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general statutes ... (7) REGULATORY AND POLICE POWERS. (A) buildings, (i) Make rules relating to the maintenance of safe and sanitary housing; (ii) Regulate the mode of using any buildings when such regulations seem expedient for the purpose of promoting the safety, health, morals and general welfare of the inhabitants of the municipality . . . (vii) Regulate plumbing and house drainage; (viii) Prohibit or regulate the construction of dwellings, apartments, boarding houses ... in such municipality unless the sewerage facilities have been approved by the authorized officials of the municipality .. . (H) PUBLIC HEALTH AND SAFETY. . . . (xiii) Make and enforce police, sanitary or other similar regulations and protect or promote the peace, safety, good government and welfare of the municipality and its inhabitants . . . . ” The Vernon housing code, Ordinance No. 105, as amended by Ordinance No. 139, was enacted by the local government under the authority of § 7-148 delegating these powers to the towns.

By virtue of this legislative delegation of general police powers to local officials and agencies, their enforcement has been made a local function and duty. That the scope or reach of the local housing ordinance may be extended or fine-tuned by its introductory statement that “[t]he provisions of the Housing Code are supplemented in some instances by the State Tenement House Act . . . the State Basic Building Code . . . the State Fire Safety Code . . . and the Landlord and Tenant Act,” does not convert the enforcement of the housing code by the housing code inspector or the defendant code enforcement committee into a state function and duty, thereby transforming the defendant into a state agency under the UAPA. All of the statutes cited in this housing ordinance, as well as General Statutes §§ 47a-50 through 47a-61, cited in Ordinance No. 122, contain detailed provisions related to the municipal powers exercised in the local housing code. The defendant agency does not obtain any of its powers and duties from them. They merely set a state standard for the uniform enforcement of the municipal powers pertaining to the regulation of the police, building and public health and safety functions of municipal government by agencies other than the defendant. As supplements to the housing ordinance, they fill any unexpressed void that may exist in the local code. The term “supplement” means “to fill up or supply by additions, add something to, fill the deficiencies of.” Webster, Third New International Dictionary. Even without such a statement in the ordinances, all pertinent state statutes would apply by the doctrine of preemption.

General Statutes §§ 19a-356 through 19a-365 constitutes the State Tenement House Act. Its provisions apply to all cities, boroughs and towns. General Statutes § 19a-356. Its technical physical requirements; §§ 19a-357 through 19a-361; are enforced by local building inspectors, fire marshals or other persons authorized to issue building permits. General Statutes § 19a-364. That its provisions are supplementary to local housing codes is manifest in General Statutes § 19a-363, which provides: “Nothing in this part shall be construed to abrogate or impair the powers of a local department of health, the fire department or the courts or any other lawful authority to enforce any provision of any city charter or building ordinance or regulation not inconsistent with this part or to prevent or punish for violations thereof.” The defendant code enforcement committee has no function or duty to perform under the State Tenement House Act.

The State Building Code, General Statutes §§ 29-251 through 29-282, constitutes the building code for all towns, cities and boroughs. General Statutes § 29-253. This code is administered locally by building officials appointed by the chief executive officer. General Statutes § 29-260. While its provisions reach all building construction and renovations throughout the state, the defendant has no function or duty to perform under its provisions.

The same conclusion is reached as to the State Fire Safety Code, General Statutes §§ 29-291 through 29-370. Its provisions are administered in towns, cities and boroughs by locally appointed fire marshals. General Statutes § 29-297. The provisions of the fire safety code do not relate to the functions and duties of the defendant Code Enforcement Committee.

The Landlord and Tenant Act is contained in General Statutes §§ 47a-1 through 47a-20a. Its title, “Rights and Responsibilities of Landlord and Tenant,” is self-definitive. The act in no way affects the defendant agency. Its relationship to the housing code is found in §§ 47a-7 and 47a-ll. These provisions, however, require landlords and tenants to comply with local housing codes, and do not extend their responsibilities to a local code enforcement committee, such as the defendant. Section 47a-7 (a) provides that “[a] landlord shall: (1) Comply with the requirements of [the Tenement House Act] and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof . . . .’’Section 47a-ll similarly provides that “[a] tenant shall: (a) Comply with all obligations primarily imposed upon tenants by applicable provisions of any building, housing or fire code materially affecting health and safety

The plaintiffs maintain that Ordinance No. 122 also clothes the defendant with the mantle of a state agency because it is a part of the “apparatus” for the enforcement of a state statute. They claim a tie-in is made in the provision of Ordinance No. 122 “pursuant to [§ 47a-55] of the General Statutes that the Housing Code Inspector, as defined in Section 1.21 of the Town of Vernon Housing Code, is hereby designated as another authority to exercise concurrent jurisdiction with the Board of Health to enforce the provisions of [General Statutes §§ 47a-50 through 47a-61] within the Town of Vernon.” Those sections are entitled “Public Enforcement of Health Safety Standards in Tenement and Boarding Houses and in Rented Dwellings.” Section 47a-55 authorizes local boards of health to enforce the chapter. It also permits local governments to “designate another authority or authorities to exercise concurrent or exclusive jurisdiction in the enforcement of this part.” The enforcement provisions of the act are found in §§ 47a-58 through 47a-61. Section 47a-58 provides for enforcement by civil penalty and injunctive relief. Civil penalties are recovered in an action brought to the superior court, subject to specified defenses. General Statutes § 47a-59. The defendant Code Enforcement Committee does not enter into any phase of the enforcement of this legislation.

We conclude, therefore, that the statutes cited in the local ordinance have no bearing on the status of the defendant agency, and do not transform it into a state agency subject to the UAPA. The situation before us is not that found in Murphy v. Berlin Board of Education, 167 Conn. 368, 372-73, 355 A.2d 265 (1974), where the Supreme Court held that since local boards of education serve as agents of the state in their communities in furnishing education for the general public, thereby performing a state function and duty required by article eighth, § 1, of the Connecticut constitution and implemented by legislative enactments, they are “state boards” within the meaning of General Statutes § 4-166 (1) of the UAPA. See Lee v. Board of Education, 181 Conn. 69, 74-76, 434 A.2d 333 (1980); Adamchek v. Board of Education, 174 Conn. 366, 368-69, 387 A.2d 556 (1978).

The second claim of the plaintiffs that the legislature deleted from § 4-183 (b), via Public Acts 1979, No. 79-163, the requirement that service of process in administrative appeals be carried out in accordance with the provisions for service of process in civil actions, falls with our conclusion that the defendant agency does not come within the meaning of state “agency” under the provisions of § 4-166 (1) of the UAPA. We need not, therefore, review that claim. Suffice it to say that General Statutes § 51-197b (a) authorizes administrative appeals to the Superior Court “from administrative decisions of officers, boards, commissions or agencies of the state or any political subdivision thereof . . . .” To appeals taken under this provision, the specific requirements, conditions and limitations of the UAPA apply to state agencies only. See Ordinance No. 139, §36.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs filed their appeal under the designation “Brian F. Edwards and/or First Edwards Realty Corp.” Although this issue has not been raised or discussed by the defendant or the trial court, we question the use of the conjunctive-disjunctive form “and/or” in identifying the plaintiffs. The Appellate Division of our former Circuit Court “deplorefd] the use of the conjunctive-disjunctive form ‘and/or’ in the pleadings because the fractional expression is an equivocal connective, being neither positively conjunctive nor positively disjunctive.” State v. Anonymous (1971-15), 6 Conn. Cir. Ct. 549, 550 n.2, 278 A.2d 827 (1971); see also Mack v. Perzanowski, 172 Conn. 310, 314-15, 374 A.2d 236 (1977).
      It is axiomatic that the parties to an action must be identified with certainty. A sales tax levy directed to several persons whose names were separated by the expression “and/or” was too indefinite to be capable of enforcement. Saylor v. Williams, 93 Ga. App. 643, 645, 92 S.E.2d 565 (1956). “In Varnell v. Speer, 55 Ga. 132 [133 (1875)], it is held: ‘When the parties are not set out with sufficient certainty to ascertain who are the defendants to a suit, no valid judgment can be rendered against any one.’ ” Saylor v. Williams, supra.

       General Statutes § 52-57 (b), as relevant here, provides: “Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen.”

       General Statutes § 4-183 (b), as relevant here, provides: “Copies of the petition shall be served upon the agency and all parties of record . . . except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       General Statutes § 4-166 (1) defines the term “agency” as used in the UAPA to mean “each state board, commission, department or officer, other than the legislature, courts, judicial review council, council on probate judicial conduct, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases . . . .”

       Public Acts 1979, No. 79-163, entitled “An Act Concerning Service of Process in Administrative Appeals,” provides: “Subsection (b) of section 4-183 of the general statutes is repealed and the following is substituted in lieu thereof: “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within [thirty] FORTY-FIVE days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within [thirty] FORTY-FIVE days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record [in the same manner as process is served in civil actions] WITHIN THIRTY DAYS AFTER MAILING OF SUCH NOTICE OR, IF A REHEARING IS REQUESTED, THIRTY DAYS AFTER THE DECISION THEREON, EXCEPT THAT SERVICE UPON AN AGENCY MAY BE MADE BY MAILING A COPY OF THE PETITION BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE OFFICE OF THE COMMISSIONER OF THE AGENCY OR TO THE OFFICE OF THE ATTORNEY GENERAL IN HARTFORD.”

       After Murphy v. Berlin Board of Education, 167 Conn. 368, 355 A.2d 265 (1974), the legislature amended General Statutes § 4-166 (1) by adding to its exclusions from the definition of “agency” any “town or regional board of education.” See Public Acts 1975, No. 75-529, § 2.


author: Norcott, J.

text:
    State of Connecticut v. Terrence Biggs
    (4851)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued September 29 —
    decision released December 15, 1987

      William M. Bloss, special public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant was charged by substitute information with attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1) and larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (1). After a trial by jury, the defendant was convicted on both counts. From those convictions the defendant now appeals.

The defendant claims that the trial court erred (1) in failing to suppress both the in-court and out-of-court identifications of the defendant made by the complainant, and (2) in instructing the jury on the inferences it might draw from circumstantial evidence. We find no error.

The following facts are relevant to this appeal. On January 10,1984, at approximately 9:30 p.m., the complainant looked out the living room window of his home in Hamden and saw his mother-in-law’s car being driven away. The complainant could not see who was driving the car. Suspecting that the car was being stolen, the complainant ran out to his car and gave chase. It was snowing at the time.

The complainant followed his mother-in-law’s car down several of the neighborhood streets until her car became stuck in the snow after its driver attempted to make a u-turn. At this point, the complainant positioned his car so that it was bumper to bumper with his mother-in-law’s car. When both cars came to rest, the right headlight of the complainant’s car shone directly on the front door on the driver’s side of the other car. The surrounding area was well lit with street lights. It was at this point that the complainant caught his first glimpse of the driver of the stolen car. He also noticed that there was a male passenger in the car, but he focused primarily on the driver of the car. The complainant watched intently as the driver of the stolen car tried in vain for approximately ten seconds to free the car from the snow. Finally, the driver and the passenger jumped out of the stolen car and ran away from the area. The complainant had no further opportunity to view the driver’s face. When the individuals who had stolen the car began to flee, the complainant pursued on foot. The complainant chased the individuals for some distance until the man who had been the driver of the vehicle turned and, with his left hand, fired a gun at the complainant. The shot hit the complainant in the shoulder. The complainant ceased chasing the two individuals and returned to his car.

Two security guards from nearby Southern Connecticut State University arrived on the scene a short while later. One of the security guards remained with the complainant while the other immediately began following footprints in the snow that he surmised were those of the two fleeing individuals. The security guard tracking the individuals was soon joined by police officers and together they were able to follow one set of footprints until the footprints stopped at the back door of a three floor apartment building in New Haven. The defendant, his mother, and his sister lived in a second floor apartment at that address.

A short time after the security guard arrived at the apartment building, additional members of the New Haven police force arrived and set up a cordon around the house. The basement of the house was then searched and nothing was discovered. Before the police could get a warrant to search the rest of the house, however, the cordon was removed. When the officers returned to the house at 8:30 a.m. the next morning with a search warrant, they were unable to locate any evidence relating to the crime of the previous evening.

While these events were occurring, a detective from the New Haven police department was interviewing the complainant. The complainant described the driver of the stolen vehicle as a black male, over six feet tall, between nineteen and twenty-one years of age, with a light complexion, short hair, slim build, and no beard. He also stated that the driver wore a dark blue pea coat, dark pants, and no hat. The complainant, however, was unable to describe the male passenger in the stolen vehicle.

The complainant was then taken to the hospital for treatment of his injuries. After he was released from the hospital, the complainant was taken to the police station where he was asked to view numerous photographs. After viewing from 150 to 600 photographs, however, the complainant was unable to identify anyone resembling the men who had stolen his mother-in-law’s car.

The following evening the complainant was again asked to view photographs at the police station. The photographic array the complainant was asked to view contained a picture of the defendant, as well as pictures of anywhere from 40 to 150 black males. The defendant’s picture was deliberately placed in the array because the police considered him a suspect. The complainant identified the defendant’s photograph saying, “This is the guy, the picture of the guy that I believe shot me, the taller of the two. I cannot be positive until I see him in person.” The complainant further remarked that although the defendant, as depicted in the photograph, bore a remarkable resemblance to the man who had shot him, his assailant had much shorter hair. The photographic arrays shown to the complainant were not preserved nor were any notations made indicating what pictures had been included in the arrays.

A warrant was issued for the defendant’s arrest, and on March 27,1984, the defendant was taken into custody. Before trial, the defendant moved to suppress the photographic identification made by the complainant and any subsequent identifications to be made by the complainant, arguing that the photographic array shown to the complainant was unnecessarily suggestive. In support of his claim he raised the following arguments: (1) the complainant had a limited opportunity to view the driver of the stolen vehicle; (2) there was conflicting testimony adduced at the suppression hearing as to how many photographs the complainant was shown; (3) the police officer who showed the complainant the photographs testified that the complainant had stopped short of making a positive identification; and (4) the only testimony adduced about the photographs was that they were all of black males. He further argued that the existence of these factors necessitated the preservation of the arrays in this case. The trial court denied the motion to suppress, and the case proceeded to trial.

At trial, the defendant advanced an alibi defense. Both his mother and his sister testified that he had come home at approximately 7:30 p.m. on the night of the incident and had not left the house for the remainder of the evening. They further testified that a man named James Evans was admitted to their home by the defendant on the evening in question. James Evans testified that it was he and another man who had stolen the car and that the other man had fired the shot. Before the defendant’s trial, Evans had pleaded guilty under the Alford doctrine to larceny in the second degree for the theft of the car.

In rebuttal to the defendant’s alibi claim, the state introduced testimony by an officer who had taken a statement from James Evans before the trial had commenced. The officer testified that Evans had told him that the defendant helped him steal the car on the night in question and that the defendant was also the person who had shot the complainant. No objection was made to this testimony.

I

The defendant’s first claim is that the trial court erred in denying his motion to suppress the in-court and out-of-court identifications made of him by the complainant. We do not agree with his claim.

The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence — including, as here, an in-court identification and testimony concerning a pretrial photographic identification — when the identification procedure used “ ‘ “was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247(1968).’States v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979).” (Footnote omitted.) State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). This is so because “[a] conviction which rests on a mistaken identification is a gross miscarriage of justice.” Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). “In order to establish that a pretrial identification procedure has violated a defendant’s constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive, and (2) that the resulting identification was not reliable under the totality of the circumstances.” State v. Hunt, 10 Conn. App. 404, 407, 523 A.2d 514 (1987); see also State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069 (1987).

The defendant argues that the photographic identification procedures used in this case were unnecessarily suggestive, but his primary claim is that the state’s failure to preserve the array has precluded him from a meaningful opportunity to meet his burden of proof in challenging the array. He asserts that the conflicting testimony about the number of pictures shown to the complainant and the fact that the only criterion used in selecting the pictures to be viewed was the person’s race raises serious enough questions about the identification procedure as to compel the preservation of the array.

We recently had the opportunity to review a claim such as this in State v. Hunt, supra. In Hunt, we held that “the failure to preserve a photographic array does not preclude a finding that the identification procedure was not suggestive.” Id., 408. Our decision was based on a long line of Connecticut Supreme Court cases to the same effect. See, e.g., State v. Doolittle, supra, 190; State v. Lally, 167 Conn. 601, 607, 356 A.2d 897, cert. denied, 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975). Furthermore, in Hunt, we held that the failure to preserve a photographic array does not shift the burden of proof to the state to prove that the array was not suggestive. The facts of this case do not suggest any reason to depart from our holding in State v. Hunt, supra.

We note, however, that police departments continue to ignore our Supreme Court’s suggestion that they preserve photographic arrays or at least make a notation as to which pictures were included in the array. State v. McKnight, 191 Conn. 564, 570 n.5, 469 A.2d 397 (1983); State v. Doolittle, supra, 190; State v. Lally, supra. The rationale behind the Supreme Court’s suggestion is obvious. If the array is not preserved, the defendant will have a difficult, if not impossible, task in proving the suggestiveness of the array. Generally, the only people who see the array are the police officers who compile it and the witnesses who view it, and they “cannot be expected to recall in sufficient detail photographs whose major importance is that they are not photographs of the suspect.” (Emphasis in original.) United States v. Sanchez, 603 F.2d 381, 385 (2d Cir. 1979). Accordingly, we urge the police to follow our Supreme Court’s suggestion that they preserve photographic arrays. The failure to do so may, under other circumstances, result in the exclusion of identification testimony and, perhaps, the unnecessary setting aside of an otherwise valid conviction.

Addressing the defendant’s contention that the identification procedures were unnecessarily suggestive, we find that the trial court had sufficient evidence to support its conclusion to the contrary. “There was no evidence from any [witness] that the array was a ‘stacked deck’ with the defendant being ‘one giant among a group of Lilliputians.’ State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982). . . . There is no evidence that the police in any way suggested to the [witness] which person [he] should identify. Cf. State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985).” State v. Hunt, supra, 408-409. The record indicates that the complainant viewed a large number of photographs, 190 at the least, and chose only one as a likeness of the man who had shot him. The simple fact that race was the only criterion used in selecting the photographs to be included in the array is not enough to compel a conclusion that the array was suggestive.

“Even if [the court] were to assume, arguendo, that the identification procedures in this case were impermissibly suggestive, the identifications were nevertheless reliable under the totality of the circumstances.” State v. Hunt, supra, 409. The complainant had an opportunity to view the defendant for approximately ten seconds in a well lit area. He was two hood lengths away from the defendant with his car lights shining directly on the defendant. The description he gave the police was consistent with the defendant’s appearance, and he made a strong, if not positive, identification of the defendant from a photographic array of 40 to 150 black males the day after the incident. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. McKnight, supra, 572; State v. Hunt, supra, 409. We find that the trial court did not err in allowing the evidence of the photographic array and in-court identification in this case.

II

The defendant’s second claim of error is that the trial court erred in instructing the jury on circumstantial evidence. Specifically, the defendant challenges the trial court’s instruction that the jurors could draw an inference from circumstantial evidence if they found that it was “more probable than not that the fact to be inferred [was] true.” Under the facts of this case we find no error in the giving of these instructions.

At the outset, we note that the defendant failed to object or except to this instruction at trial. We shall review the defendant’s claim, however, because it implicates his constitutional right not to be convicted except upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Diorio, 12 Conn. App. 74, 84, 529 A.2d 1320 (1987).

Our courts have consistently held that “a jury instruction in a criminal case which informs a panel that it may infer a fact when it is more probable than not that such a fact exists is erroneous ‘because, as applied to inferences for the finding of facts that are essential elements of the crime, it unconstitutionally dilutes the state’s burden of proving guilt beyond a reasonable doubt.’ State v. McKenna, [11 Conn. App. 122, 135, 525 A.2d 1374 (1987)]. Such error, however, has been held to be reversible only if it is reasonably possible that the jury was misled by the trial court’s instructions. Id.” State v. Trujillo, 12 Conn. App. 320, 330, 531 A.2d 142 (1987).

In determining whether it is reasonably possible that a jury was misled by a particular instruction, “our courts have focused upon the primary disputed factual issue which was before the jury in the case, and the bearing that the erroneous instruction had on such issue.” Id., 330. “ ‘Where the principal factual issue is intent, which is characteristically proven by circumstantial evidence; see State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); the trial court’s instructions regarding the use of circumstantial evidence as proof of this essential element are subject to close scrutiny. See State v. Rodgers, [198 Conn. 53, 58, 502 A.2d 360 (1985)]. Where . . . the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court’s instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence. See State v. Reddick, [197 Conn. 115, 133, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986)].’ ” State v. Perez, 10 Conn. App. 279, 283-84, 523 A.2d 508 (1987), quoting State v. Farrar, 7 Conn. App. 149, 155-56, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).

The defendant admits that the primary factual issue in dispute in this case was identity, but he argues that it was proven mainly by circumstantial evidence and, therefore, the court should subject the jury instructions to strict scrutiny. We do not agree.

There were several pieces of circumstantial evidence introduced at trial which tended to prove that the defendant was the driver of the stolen automobile and the man who shot the complainant. A security guard testified that, on the night of the incident, he and several other officers followed footprints leading from the stolen car until the footprints came to an end just outside the building in which the defendant lived. One of the officers further testified that the defendant’s mother later informed him that the defendant knew that he was being sought by the police and had run away to hide. In addition, the complainant testified that the man who shot him held the gun in his left hand, and other testimony revealed that the defendant was left-handed.

By far the most persuasive evidence introduced at trial, however, was direct evidence. The complainant identified the defendant both in court and in a pretrial photographic display as the man who had stolen the car and then shot him. In addition, a police officer testified that James Evans, the admitted passenger of the stolen car, gave a statement in which he implicated the defendant as both the driver of the stolen vehicle and the man who shot the complainant. Given this evidence we find no merit in the defendant’s claim that identity was proven mainly by circumstantial evidence.

Accordingly, we read the jury instructions as a whole to determine whether it is reasonably possible that the jury was misled as to the state’s burden of proof. State v. Rodgers, supra; State v. Whitaker, 12 Conn. App. 604, 606, 533 A.2d 233 (1987). We find that it is not. The trial court informed the jury several times that the defendant was presumed to be innocent and that it was not to convict the defendant except upon proof beyond a reasonable doubt. Further, the trial court specifically instructed the jury that the state had the burden of proving beyond a reasonable doubt that the defendant was the perpetrator of the crimes with which he was charged. “We hold, therefore, that ‘it was not reasonably possible that the isolated use of the phrase “more probable than not” confused or misled the jury with regard to the state’s heavy burden of proof.’ ” State v. Robinson, 204 Conn. 207, 211, 527 A.2d 694 (1987).

There is no error.

In this opinion the other judges concurred.

       The two sets of footprints diverged at some point between the scene of the crime and the apartment building. The police attempted to follow the other set of footprints but were unsuccessful.

       Ordinarily, a guilty plea involves a defendant’s admission that he committed the crime charged. Under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), however, an accused can plead guilty without admitting that he committed the acts with which he is charged if (1) a factual basis exists for the plea, (2) the plea is voluntarily, knowingly, and intelligently entered, and (3) the trial court has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence.


text:
    In re Rayna M. et al.

    (5612)
    Dupont, C. J., Bieluch and Nokcott, Js.
    Argued September 29 —
    decision released December 15, 1987

      Jane S. Scholl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellant (petitioner).

      Lawrence A. Dubin, for the appellee (respondent mother).

      Stephen P. Hanchuruck, for the appellee (respondent father on the first and second petitions).

      Antonio C. Robaina, for the appellee (respondent father on the third petition).

      David T. Totman, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

   Bieluch, J.

This appeal involves three separate petitions to terminate the parental rights of the parents of three children, brought pursuant to General Statutes § 17-43a by the commissioner of the department of children and youth services (hereinafter DCYS). The three petitions were considered jointly by the trial court. DCYS appeals from that court’s denial of the petitions. We find error.

The three petitions filed by DCYS on February 27, 1986 sought to terminate the parental rights of Kathie M., the mother of Rayna M., a daughter aged seven at the time the petitions were filed, Cheyanne K., a daughter aged six, and Brandon K., also known as Brandon M., a son aged two. The petitions pertaining to the girls also sought to terminate the parental rights of their father, Dewayne Me. The petition on Brandon’s behalf also sought to terminate the parental rights of his father, David M. These three petitions alleged essentially identical grounds for the termination of the respondents’ parental rights as set out in General Statutes § 17-43a (b). Because Dewayne had consented in writing to the termination of his parental rights with respect to his daughter Rayna, the petition filed on her behalf contained allegations only as to Kathie, her mother. The relevant allegations of each petition being pursued on this appeal were that for not less than one year the parents (1) abandoned each child in the sense that they failed to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare, (2) failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, who were each previously adjudged neglected or uncared for, the parents could assume a reasonable position in each child’s life, and (3) had no ongoing parent-child relationship, defined as the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral, and educational needs of a child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.

The state filed with its petitions a termination of parental rights study pursuant to General Statutes § 45-61f (e). The court considered the history of the respondents and children revealed by this study, as well as information contained in various status reports and DCYS files on each child. Rayna was born on September 9,1978, in Meriden; her sister, Cheyanne, was born on September 5,1979, in New Haven. The girls are the second and third children of Kathie; an older daughter, Miranda, was born to Kathie on August 6, 1976, and was subsequently adopted. Rayna and Cheyanne are, respectively, the first and second children of Kathie and Dewayne. Both girls have spent much of their young lives in the care of persons other than their parents. Rayna has spent approximately one year in her mother’s care and only a few months in the care of her father. For the rest of her life, Rayna has been taken care of by relatives or has been in the custody of the state in a series of varied state supervised foster care facilities and institutions. Cheyanne has spent approximately four years with her mother and eight months with her father. The balance of her life has been spent in the care of relatives, friends and under the supervision of DCYS in foster care homes.

On December 5,1982, Rayna was adjudged neglected and was committed to the care and custody of DCYS. In December, 1984, Cheyanne was found to be abandoned by her mother and was committed to the guardianship of DCYS.

At the time of Rayna’s commitment in 1982, DCYS presented Kathie with expectations regarding her behavior which would be monitored and assessed by DCYS to determine her level of commitment to the ability to have the child returned to her care. These expectations, which were also the bases for the subsequent evaluations of Kathie regarding her daughter Cheyanne and son Brandon, were as follows: (1) maintain regular contact with DCYS; (2) visit each child as often as DCYS permits; (3) participate in counseling; (4) procure adequate housing; and (5) resolve marital problems with David, her husband at the time.

Kathie met none of these expectations. Away from the state for long periods of time while allegedly driving trucks or accompanying a truck driver friend, her contact with DCYS was sporadic, and her communications or visits with her children were random at best. Kathie stopped participating in counseling in October, 1983, and her relationship with her husband remained unstable. Kathie left the state in April, 1985, to live in Arkansas with a boyfriend but, as of the date the termination petitions were filed, had apparently not divorced David, her husband. Prior to the filing of the termination petitions, Kathie had expressed a desire to have her children come to Arkansas to live with her and her boyfriend. DCYS initiated a home study through the Interstate Compact and it was discovered that this Arkansas home was no longer existing as Kathie and her boyfriend had separated and she was about to move.

The girls’ father, Dewayne, had provided no financial support for the care of his daughters, and had had no contact with DCYS regarding their well being from June, 1981, until August, 1984, when he contacted DCYS and requested that both girls be allowed to live with him, his wife Peggy Me., and their two children in New Hampshire. In December, 1984, Cheyanne, who was under the guardianship of DCYS, went to live with her father and his family; Rayna joined her younger sister in March, 1985. This was not a successful placement for either child. Rayna returned to Connecticut on June 29, 1985; on July 11, 1985, Dewayne signed and acknowledged a statutory written consent to the termination of his parental rights with respect to this child. Cheyanne returned to Connecticut on August 29, 1985, but no written consent to the termination of his parental rights as to her was executed by him. Dewayne has had no contact with either child since their return to Connecticut.

Brandon was born on August 21, 1983. He is the fourth child of Kathie and the first and only child of the marriage union of Kathie and David. Brandon was placed in a foster home in July, 1984, after he and his half-sister Cheyanne were found living in filthy conditions which were injurious to their well being. At the time, Brandon was in his father’s care and Cheyanne was in the care of a female friend of the family. Kathie was then reportedly on the road, driving a truck. Brandon was committed to DCYS on December 7,1984, for eighteen months. Following Brandon’s commitment to DCYS, David expressed a desire to make a home for his son. He was given a list of DCYS expectations and a DCYS worker began to work with him towards reunification with his son. After a hopeful start, David eventually stopped visiting Brandon at the foster home and never found adequate housing for his son. David has not seen his son since September, 1985, nor has he called either the foster home or the DCYS caseworker to inquire about the child’s well being.

At the time the termination petitions were filed, on February 27,1986, all three children were living in separate foster homes. The family with whom Rayna was placed had indicated a desire to adopt her. Permanent homes were being sought for Cheyanne and Brandon. The legal status and custody of the children remained unstable and chaotic as it had been throughout their entire brief lives.

The trial court found that DCYS had proven neither the allegations set forth in the two separate petitions to terminate the parental rights of Kathie and Dewayne with respect to Rayna and Cheyanne, nor the allegations of the petition to terminate the parental rights of Kathie and David, Brandon’s parents. In this appeal from the trial court’s subsequent denial of these petitions, DCYS claims that the court erred in finding (1) that the petitioner, DCYS, had not proven that the respondent parents had failed to rehabilitate themselves within the meaning of General Statutes § 17-43a because the court applied a “some future date” standard rather than the “reasonable time” standard required by the statute, (2) that DCYS had not proven that there was no ongoing parent-child relationship within the meaning of General Statutes § 17-43a because the court applied a standard of “no relationship” rather than “no positive relationship” in determining such grounds, and (3) that DCYS had not proven that the parents had abandoned their children within the meaning of General Statutes § 17-43a because the court did not apply the proper test for determining abandonment. DCYS also maintains that the trial court erroneously concluded that the consent of Dewayne to the termination of his parental rights to his daughter Rayna was ineffective. Finally, DCYS claims that the court failed to find certain material facts which were either admitted or undisputed. We agree with the claims made by DCYS and, accordingly, find error in the trial court’s denial of the petitions.

I

The statutory standard for the failure to achieve personal rehabilitation is set out in General Statutes § 17-43a. Subsection (b) (2) of that statute provides that the trial court may grant a petition to terminate parental rights if it finds, upon clear and convincing evidence, that “the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have 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, they could assume a responsible position in the life of the child.” (Emphasis added.) Prior to the amendment of § 17-43a by No. 83-478, § 1, of the 1983 Public Acts, which became effective on October 1,1983, DCYS had to prove a greater burden, that the parents had “failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child’s life.” (Emphasis added.) General Statutes (Rev. to 1981) § 17-43a (a) (2).

The trial court denied the DCYS petitions, which were filed on February 27, 1986, under the statutory standard previously applicable to petitions filed prior to October 1, 1983. Relying on the outdated standard of proof, the trial court concluded that “[t]he petitioners in the present petitions have not by clear and convincing evidence demonstrated that the mother Kathie, who spends her time truck driving, will not at some future date assume a responsible position in her children’s lives.” (Emphasis added.) Furthermore, the court made no findings as to the likelihood that the two fathers, Dewayne or David, would assume a responsible position in the lives of their children at any time or date. “ ‘Personal rehabilitation’ as used in [General Statutes § 17-43a] refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533 (1986). The unamended statute before October 1, 1983, set “no particular time limit as to when a parent must be able to assume again a responsible position in the life of his or her child. In re Juvenile Appeal (84-3), [1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984)].” In re Migdalia M., supra. The amended statutory provision, applicable here, requires proof by DCYS only that the parents of a neglected or uncared for child have 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, they could assume a responsible position in their child’s life. As the court so aptly stated in In re Migdalia M., supra, 199, “ ‘[a]t some future date’ is quite another test than ‘within a reasonable time.’ ”

The trial court applied an improper statutory standard when considering the claim of DCYS that the parents had failed to rehabilitate themselves within the terms of General Statutes § 17-43a. “Since termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in an everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well, courts must require strict adherence to the statutory standards. See In re Juvenile Appeal (Anonymous), 181 Conn. 638, 640, 436 A.2d 290 (1980); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979).” In re Migdalia M., supra, 203.

II

Although the dispositive issue on appeal is the trial court’s erroneous application of the former “some future date” standard, rather than the “reasonable time” standard now required by General Statutes § 17-43a when determining whether the parents had rehabilitated themselves within the meaning of the statute, the additional claims made by DCYS may arise upon the rehearing of the petitions. These claims will, therefore, be addressed to facilitate these proceedings. Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150 (1960); W. Maltbie, Connecticut Appellate Procedure § 341.

Each petition alleged as an additional ground for termination of parental rights the provision of General Statutes § 17-43a (b) (4) which provides that the trial court may terminate parental rights where “there is no ongoing parent-child relationship [for a period of one year], which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.” The trial court denied the termination petitions on this ground as well.

The trial court, in considering this ground, found that the children were affectionate towards their mother, but showed anger at her for running off with truck drivers. The court noted that some relationship existed between Rayna and her mother, although Rayna is not bonded to her. The court also found that both girls had strong feelings towards their mother, although, the court added, these feelings may be negative. As to the fathers, the court noted that until September of 1985, when he dropped out of sight, David had had a good relationship with Brandon. The relationship of Dewayne to his daughters Rayna and Cheyanne was less clear to the court, although it noted that while Cheyanne was living with her father and his family in New Hampshire she felt bonded to them. The court thereupon denied the petitions on its finding that DCYS had failed to establish that no ongoing parent-child relationship existed between the respondent parents and their respective children.

The court’s analysis of this ground as a basis for the termination of the respondents’ parental rights was based, however, on the dissenting opinion of Justice Parskey in In re Juvenile Appeal (Anonymous), 181 Conn. 638, 648, 436 A.2d 290 (1980). The quoted language on which the court relied states in pertinent part: “It is not enough for the [DCYS] commissioner to show a troubled relationship or even no meaningful relationship. Parental rights may be terminated only by showing no relationship.” Id. The majority opinion in that case set forth that “ ‘[i]t is reasonable to read the language of “no ongoing parent-child relationship” to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitely lost that relationship, so that despite its former existence it has now been completely displaced. In either case the ultimate question is whether the child has no present memories or feelings/or the natural parent.’ ” (Emphasis added.) Id.; seelnre Juvenile Appeal (81-3), supra, 479.

In In re Juvenile Appeal (84-6), 2 Conn. App. 705, 483 A.2d 1101 (1984), cert, denied, 195 Conn. 801, 487 A.2d 564 (1985), this court rejected the argument that even a negative relationship, such as was referred to in Justice Parskey’s dissenting opinion cited by the trial court, was sufficient to overcome a claim of no ongoing parent-child relationship. Our court there held that “in applying [the] definition [of no ongoing parent-child relationship] to the facts of [a] case, we focus on ‘the ultimate question [of] whether the child has no present memories or feelings/or the natural parent.’ . . .Common sense and the avoidance of bizarre results dictate that we read that language in its ordinary meaning. ... As used here, ‘for’ means ‘what is said or felt in favor of someone or something: pro.’ Webster, Third New International Dictionary. We must conclude, therefore, that the phrase ‘feelings for the natural parent’ refers to feelings of a positive nature.” In re Juvenile Appeal (84-6), supra, 709.

The trial court erred when it relied on the existence of negative feelings on the part of the children towards their mother, as well as the existence of some past relationship between the fathers and their children, to defeat the DCYS claim that there has been no ongoing parent-child relationship for at least one year in each case. “A conclusion of the trial court cannot stand if an erroneous legal standard or rule of law was applied. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); University of Hartford v. Hartford, 2 Conn. App. 152, 157, 477 A.2d 1023 (1984).” Phillipe v. Thomas, 3 Conn. App. 471, 476, 489 A.2d 1056 (1985).

Ill

The petitions filed by DCYS also allege that Cheyanne and Brandon have been abandoned by their parents and that Rayna has been abandoned by her mother. Rayna’s father, Dewayne, consented to the termination of his parental rights with respect to her. General Statutes § 17-43a (b) (1) provides that the trial court may grant a petition to terminate parental rights if it finds, upon clear and convincing evidence, that for not less than one year “[t]he child has been abandoned

by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.”

“Abandonment focuses on the parent’s conduct. It is a question of fact for the trial court ‘which has the parties before it and is in the best position to analyze all of the factors which go into the ultimate conclusion that [the statutory standard of abandonment] has been satisfied.’ In re Adoption of Webb, 14 Wash. App. 651, 657, 544 P.2d 130 (1975).” In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981).

The trial court found that any contact Kathie had with her children was sporadic at best, and was usually in the form of infrequent phone calls. In 1985, Kathie sent cards to the children on their birthdays. After leaving the state in April of that year, Kathie visited each child briefly in December, 1985, and in February, 1986, before leaving the state again. The court also found that as of January, 1986, Dewayne’s whereabouts were unknown, and that David had dropped out of sight in September, 1985.

The trial court concluded that DCYS had failed to establish by clear and convincing evidence that Brandon had been abandoned by his parents, Kathie and David. The court made no specific finding as to the abandonment of either Rayna or Cheyanne by Kathie or Dewayne, other than to state generally that “[t]he petitioner has failed to demonstrate by clear and convincing evidence the grounds alleged in the petitions pertaining to Cheyanne K. or Rayna M. for termination.”

The trial court applied an improper test for determining abandonment within the meaning of General Statutes § 17-43a (b) (1). The statutory standard is not whether the parents have shown some interest in their children. Common sense dictates that a parent’s obligations toward his or her child go further than a minimal interest. From the recital of the facts before the court and the parents’ course of conduct, it is apparent that neither Kathie nor Dewayne nor David manifested any reasonable degree of interest, concern or responsibility as to the welfare of their respective children.

“ ‘The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.’ ” In re Juvenile Appeal (Docket No. 9489), supra, 15, quoting In re Adoption of Webb, supra, 653.

It is not lack of interest alone which is the criterion in determining abandonment. Abandonment under General Statutes § 17-43a (b) (1) requires failure to maintain “interest, concern or responsibility as to the welfare of the child.” “Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of ‘interest, concern or responsibility’ for the welfare of a child. In re Luke G., 40 Conn. Sup. 316, 323, 498 A.2d 1054 (1985). Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child’s welfare, statutory abandonment has occurred. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 438 A.2d 801 (1981).” In re Migdalia M., 6 Conn. App. 194, 208-209, 504 A.2d 533 (1986).

General Statutes § 17-43a (b) (1) does not contemplate a sporadic showing of the indicia of “interest, concern or responsibility for the welfare of a child.” A parent must maintain a reasonable degree of interest in the welfare of his or her child. “ ‘Maintain’ implies a continuing, reasonable degree of concern.” In re Migdalia M., supra, 210.

It was clearly erroneous for the trial court to find that the respondent nonconsenting parents had not abandoned their children within the terms of General Statutes § 17-43a (b) (1). The “minimal” interest of the parents found by the trial court was insufficient to overcome the proof of abandonment established by DCYS. The conclusion of the trial court on the issue of abandonment cannot stand. Phillipe v. Thomas, supra.

IV

The petition to terminate the parental rights to Rayna alleged that her father, Dewayne, had consented to the termination of his parental rights. The trial court found this consent “ineffective . . . since his consent is dated July 11, 1985” and the petition to terminate was “filed February 27, 1986.” The court apparently believed that the consent was ineffective because it was executed prior to the filing of the petition.

General Statutes § 17-43a (b) provides that the trial court may grant a petition to terminate parental rights if it finds that “with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child . . . .” Section 17-43a (a) provides that “[i]f a petition indicates that either or both parents consent to the termination of their parental rights, or if at any time following the filing of a petition and before the entry of a decree, a parent consents to the termination of his parental rights, each consenting parent shall acknowledge such consent on a form promulgated by the office of the chief court administrator evidencing to the satisfaction of the court that the parent has voluntarily and knowingly consented to the termination of his parental rights.” (Emphasis added.) By the terms of this statute, consent may be given in the alternative before or after the filing of a petition.

It is clear from the language of § 17-43a (a) that a petition may indicate the prior consent of a parent to termination if that is the case. Execution of a consent form prior to the filing of a petition is therefore not precluded. In fact, prior consent is also recognized as an appropriate course by the contents of form JD-JM-40, “Petition for Termination of Parental Rights.”

The record in this case contains Dewayne’s consent on the form promulgated by the office of the chief court administrator, form JD-JM-60, conforming to the requirements of § 17-43a (a). The form is signed by Dewayne and acknowledged before a notary who indicated (1) that the form was signed by Dewayne in his presence after Dewayne had read it, and (2) that Dewayne stated that he understood the contents of this consent. The form evidences that Dewayne “voluntarily and knowingly consented] to the termination of [his] parental rights,” and provides the court with the basis for a finding of voluntary and knowing consent as required by the statute.

The consent obtained from Dewayne regarding the termination of his parental rights to his daughter Rayna was in conformance with the requirements of § 17-43a (a). The trial court erred in finding it ineffective.

V

DCYS maintains also that the trial court erred in failing to consider certain material facts which were either admitted or undisputed by the parties. Although the “finding” by the court has been abolished, a party may still attack the factual basis of the court’s decision as failing to include material facts that are admitted and undisputed by the parties. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 222 n.5.

Inasmuch as we conclude that the trial court erred in denying the three separate petitions for termination of parental rights and that a rehearing will be required at which this claim of evidentiary error is not likely to recur, we therefore decline to review this issue.

There is error, the judgment is set aside and the case is remanded for a rehearing.

In this opinion the ther judges concurred.

         General Statutes § 17-43a provides in relevant part: “(a) In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child, including the right to petition the court for the revocation of the commitment of the child. The petition shall be in the form and contain the information set forth in subsection (b) of section 45-61c, and be subject to the provisions of subsection (c) of said section. If a petition indicates that either or both parents consent to the termination of their parental rights, or if at any time following the filing of a petition and before the entry of a decree, a parent consents to the termination of his parental rights, each consenting parent shall acknowledge such consent on a form promulgated by the office of the chief court administrator evidencing to the satisfaction of the court that the parent has voluntarily and knowingly consented to the termination of his parental rights. No consent to termination by a mother shall be executed within forty-eight hours immediately after the birth of her child. A parent who is a minor shall have the right to consent to termination of parental rights and such consent shall not be voidable by reason of such minority. A guardian ad litem shall be appointed by the court to assure that such minor parent is giving an informed and voluntary consent.
      “(b) The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have 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, they could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.”

       Kathie had claimed that her husband, David, was not Brandon’s biological father. A paternity hearing was held at the insistence of David and it was established that he was the boy’s legal father because of his marriage to Kathie at the time of Brandon’s birth. The boy’s birth certificate was subsequently changed to reflect his legal status as the son of David.

       See footnote 1, supra.

       General Statutes § 45-61f provides in relevant part: “(e) (1) The court may, and in any contested case shall, request the commissioner of children and youth services or any child-placing agency licensed by the commissioner to make an investigation and written report to it ... . (3) The report shall be admissible in evidence, subject to the right of any interested party to require that the person making it appear as a witness, if available, and subject himself to examination.”

       The attorney appointed to represent the children in this matter has filed a letter with this court endorsing the position taken by DCYS. Accordingly, no separate brief on behalf of the children has been filed.

       The only authority cited by the trial court for its use of the obsolete standard was the case of In re Juvenile Appeal (84-3), 1 Conn. App. 463, 473 A.2d 795, cert, denied, 193 Conn. 802, 474 A.2d 1259 (1984), in which the court reviewed a judgment rendered in 1981 terminating parental rights under General Statutes § 17-43a before its 1983 amendment to the present time standard.