author: LAVINE, J.

text:
    IN RE STEPHEN M. ET AL.

    (AC 28084)
    Bishop, Lavine and Borden, Js.

      Argued April 25
    officially released August 12, 2008

      Vernon D. Oliver, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      Kathryn Steadman, for the appellee (respondent mother).

      Karen Oliver Damboise, for the appellee (respondent father).

      Matthew J. Collins, for the minor children.

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

   Opinion

LAVINE, J.

To facilitate the state’s parens patriae interest, the legislature has enacted a comprehensive scheme to protect children who are at risk due to their parents’ inability or failure to provide for their well-being. See General Statutes § 17a-101; In re T.K., 105 Conn.. App. 502, 503-504, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The statutory scheme takes into consideration, however, the fundamental precept that “[p]arents have a constitutionally protected right to raise and care for their own children.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983). The statutory scheme consists of a number of interrelated intermediate steps on a path that eventually may lead to the termination of parental rights. The adjudication of those intermediate steps yields factual findings and orders regarding behavior expected of parents to facilitate reunification of families, if possible, and provides a factual predicate for further proceedings.

The petitioner, the commissioner of children and families, appeals from the judgments of the trial court dismissing the petitions for the termination of the parental rights of the respondent parents with respect to their three children, a son and two daughters. The petitioner claims that when adjudicating the petitions for termination of parental rights, the trial court, Crawford, J., improperly disregarded the prior factual finding that the children were neglected, which was based on the father’s sexual abuse of the respondents’ son. In light of the fact that a party is barred by the doctrine of collateral estoppel from relitigating a previous finding of neglect during a subsequent termination trial, we agree that the trial court improperly disregarded the earlier neglect finding. We therefore reverse the judgments of the trial court.

The following facts, as found by the court, Trombley, J., after the trial on the neglect petitions, are relevant to the petitioner’s appeal. In July, 1991, the father agreed to the termination of his parental rights in a daughter, T, who is not a subject of this appeal. The father has a criminal record. In May, 1994, he received a suspended sentence for threatening and harassment. In 1995, he was arrested and charged with multiple counts of sexual assault in the third degree and risk of injury to a child for acts he perpetrated on T. On February 21, 1996, he pleaded guilty, pursuant to the Alford doctrine, to two counts of risk of injury to a child. He received a suspended sentence and a term of probation, but he failed to cooperate with the office of adult probation (adult probation). According to his probation officer, the father was arrogant and resisted treatment at the Northeast Mental Health Sexual Offender Program and eventually was discharged from that program. He refused to discuss his relationships with significant others. Adult probation referred the respondents to the department of children and families (department) prior to the birth of their son.

The department investigated and urged the mother to participate in counseling services for nonoffending parents of sexual abuse victims in order to protect the son, who was bom in late 1997. The respondents signed a service agreement from the department, requiring twenty-four hour a day adult supervision for their son. The mother was required to protect the boy from harm and to cooperate with the department. The father was to have no unsupervised contact with his son pursuant to the court-ordered conditions of probation. The father violated a no contact order regarding T. In 1998, he was found to be in violation of his probation and sentenced to two years in prison. On July 17, 2002, the father was convicted of breach of the peace in the second degree for acts perpetrated against the mother.

On August 5, 2002, the father reported to the state police that his son had disclosed to him that the son had been sexually assaulted by a neighbor, “Uncle Ray. ” Using the language of a child, the son later told the investigating state trooper, Steven Corradi, of sexual acts perpetrated on him by his father. The son also told Corradi that he had lied about Uncle Ray because he feared that his father would go to jail. Corradi referred the matter to the department. Orders of temporary custody were filed with respect to the son and the older daughter, who was two months old at the time. The orders of temporary custody were sustained by agreement. The son was evaluated by a sexual abuse expert, Rebecca Bowen, in December, 2002. Bowen concluded within a reasonable degree of clinical probability that the son had been sexually abused and that the father was the abuser. Bowen recommended that the son have no contact with the father and that the mother receive therapy. On the basis of Bowen’s advice, the department stopped visits between the father and son. The father was evaluated by two sexual offender specialists, who found that he was at medium to high risk to reoffend. They recommended that the father not have unsupervised contact with the children.

On August 22, 2002, the petitioner filed neglect petitions for the respondents’ son and older daughter. The petitioner alleged that the respondents’ son “is being denied proper care and attention, physically, educationally, emotionally or morally, or ... is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . . .” General Statutes § 46b-120 (9) (B) and (C). The petitioner also alleged that the son was abused in that he “is in a condition that is the result of maltreatment such as . . . sexual molestation or exploitation . . . .” General Statutes § 46b-120 (4) (C). The petitioner alleged that the older daughter “is being denied proper care and attention, physically, educationally, emotionally or morally, or ... is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . . .” General Statutes § 46b-120 (9) (B) and (C). The respondents’ younger daughter was bom in June, 2003, and agents of the department filed an order of temporary custody when she was two days old. The order of temporary custody was sustained. On June 30, 2003, the petitioner filed a neglect petition for the respondents’ younger daughter on the same grounds as those alleged as to her sister.

The neglect petitions were tried before Judge Trombley in April, 2004. In its memorandum of decision, the court identified the core question as whether the son was sexually abused by the father and whether he was an abused child within the meaning of § 46b-120 (4) (C). As to the older daughter, the court stated that the issue was whether she, as a child residing in the same household, was a neglected child as defined by § 46b-120 (9). As to the younger daughter, the question was whether the petitioner was justified in removing her from the respondents’ care under the doctrine of predictive neglect.

Judge Trombley found, with respect to the neglect petitions, that the petitioner had proven by a fair preponderance of the evidence that the son was an abused child within the meaning of § 46-120 (4) (C) in that he had been sexually molested by the father. The court based its finding on the father’s conviction related to having sexually assaulted T, his lack of cooperation with adult probation, his violation of probation and the testimony of experts who opined that the father had abused the son. The court also found that the son was permitted to live under conditions, circumstances and associations injurious to his well-being. As a consequence of the sexual abuse he had sustained, the son was being denied proper care and attention, emotionally and morally.

As to the respondents’ daughters, the court found that the petitionerliad proven by a fair preponderance of the evidence that there was a substantial risk that harm would be perpetrated on them. The court found, moreover, that the daughters had been denied proper care and attention, emotionally and morally, and that they were or would have been living under conditions, associations and circumstances injurious to their well-being.

In light of the father’s sexual abuse of the son, the risk to which the daughters would have been exposed, and the mother’s continuing refusal to accept that the father’s abuse was possible, if not substantially probable, the court committed all three children to the custody of the petitioner until further court order. The court found by clear and convincing evidence that it was no longer appropriate for the department to make efforts to reunify the father with the children.

The court found, however, that the petitioner had not proven by clear and convincing evidence that further efforts to reunify the mother with the children were no longer appropriate. The mother’s only failings were her belief, against compelling evidence to the contrary, that the father did not sexually abuse their son and her allowing the father to direct and to control her actions in this case, including her insistence that he and she be represented by the same counsel. The court ordered the mother to engage in nonoffender sexual abuse counseling and denied her permission to see her son until she complied with the order. The court ordered the department to make reasonable efforts to explore the possibility of returning the three children to the mother’s care without the participation of the father. The court ordered specific steps to be taken to reunite the mother with the children pursuant to General Statutes § 46b-129 Q). Neither respondent appealed from the judgments that their children were neglected.

Subsequent to the neglect adjudications, the mother failed to cooperate with the department and was unwilling to participate in a family evaluation until January, 2005. The evaluation was performed by Nancy Randall, a licensed psychologist, who recommended against visits between the son and the mother. The mother insisted that despite a history of depression and drug and alcohol abuse, she did not feel the need for treatment. Randall also evaluated the father, who acknowledged problems with domestic violence in his intimate relationships but denied any problem with alcohol or drugs. He also denied any need for treatment and insisted that he would not engage in sex offender therapy. Randall concluded that the father may be willing to go through the motions but would not participate in treatment in a therapeutic way. The respondents had not seen their son since February, 2003. Randall opined to a reasonable degree of psychological certainty that there was no evidence to suggest that they were likely to benefit from treatment in the foreseeable future.

The respondents continued to deny that the father had abused the son and maintained, therefore, that there was no reason for them to enter treatment. On September 20, 2004, the petitioner filed petitions to terminate the respondents’ parental rights as to their three children, alleging that the respondents had failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 Q) (3) (B) (ii), and through acts of omission and commission denied the children the guidance and control necessary to their well-being under § 17a-112 (j) (3) (C). Each of the petitions was later amended to allege that there was no ongoing parent-child relationship pursuant to § 17a-112 CD (3) (D).

The trial on the petitions to terminate parental rights began on February 7, 2006, and continued on various dates thereafter. Judge Crawford issued a memorandum of decision in which she denied the petitions to terminate parental rights on September 13, 2006. The court found that the petitioner had not proven by clear and convincing evidence any of the three grounds for termination of parental rights alleged. The court stated, in part, that “the evidence, in many instances was loose, equivocal and contradictory, and [the department] created the situation for the claim of no ongoing parent-child relationship. The underlying basis for the removal of the children, the alleged sexual abuse by father, appears to have been a pretext to remove the children. The evidence does not support a conclusion of acts of omission/eommission.” The court did not provide an explanation for its conclusion that removing the children from the respondents’ care was pretextual. We acknowledge that the trier of fact is free to evaluate expert testimony as it sees fit, but we note that in its memorandum of decision, the court did not mention observations and opinions contained in the experts’ reports pointing to the father as the perpetrator of the son’s sexual abuse.

The court also rejected the department’s permanency plan finding that adoption was not in the best interests of the children, but that reunification with the respondents was in the children’s best interests. The court ordered the children to remain in the custody of the petitioner and ordered the department to file a new permanency plan with the goal of reunification. The petitioner appealed.

I

The petitioner’s first claim is that Judge Crawford improperly concluded that the petitioner had failed to prove by clear and convincing evidence that the respondents had failed to achieve a sufficient degree of personal rehabilitation because the court reconsidered issues that had been decided during the trial on the neglect petitions. We agree.

In ruling on the petitions to terminate the respondents’ parental rights, the court noted that the three children had been adjudicated neglected on July 26, 2004, and that efforts by the department to reunify the father with the children were no longer appropriate. Nonetheless, the court discounted those factual findings, concluding that “[t]he underlying basis for the removal of the children, the alleged sexual abuse by the father, appears to have been a pretext to remove the children.” In a footnote, the court observed that the standard of proof in a trial on a neglect petition is a fair preponderance of the evidence. “This is a trial on a petition for [termination of parental rights] where the standard of proof is clear and convincing evidence.” Judge Crawford also disagreed with Judge Trombley’s finding that the son had been abused by the father. She found it significant that the son had not reported to anyone other than Corradi that his father had sexually molested him and was concerned that service providers and evaluators relied on Corradi’s report. She also found that the petitioner failed to prove by clear and convincing evidence that the department “made reasonable efforts to reunify [the son] with [the respondents]. The evidence does not support the conclusion that the parents are unwilling or unable to benefit from such efforts.”

The petitioner argues that it was improper for Judge Crawford to revisit the question of whether the children were neglected and, in effect, nullify the prior finding of neglect. The petitioner claims that the issue of neglect is res judicata. We agree that during the adjudication of a petition for the termination of parental rights, a trial court may not reconsider the issue of neglect if the children were found to be neglected in a prior proceeding. The doctrine of collateral estoppel precludes the relitigation of the finding of neglect.

The petitioner’s claim that a trial court may not reconsider the issue of neglect during a termination of parental rights proceeding presents a mixed question of fact and law because it involves the application of factual determinations to the statutory scheme for the protection of the well-being of children. In such circumstances, an appellate court employs the de novo standard of review. See, e.g., Friezo v. Friezo, 281 Conn. 166, 180, 914 A.2d 533 (2007). “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Savings Bank of Manchester v. Ralion Financial Services, Inc., 91 Conn. App. 386, 389, 881 A.2d 1035 (2005).

General Statutes § 17a-112 sets forth the parameters within which the state may terminate parental rights. The portion of the statute relevant to the termination of parental rights on the basis of a respondent’s failure to achieve rehabilitation provides that “[t]he Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (B) the child (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.) General Statutes § 17a-112 (j).

“The purpose of statutory construction is to give effect to the intended purpose of the legislature. . . . If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent. . . . Common sense must be used [when construing statutes] and courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . We must presume that each sentence, clause and phrase in a public act has a purpose and that the legislature did not intend to enact a meaningless law.” (Citation omitted; internal quotation marks omitted.) In re Kachainy C., 67 Conn. App. 401, 411, 787 A.2d 592 (2001).

Pursuant to the procedural posture of this case, under § 17a-112 (j) (B) (i), the petitioner did not have to prove at the termination hearing that the children were neglected but only that the children had been found to be neglected in a prior proceeding. Here, the petitioner placed into evidence Judge Trombley’s memorandum of decision finding the children neglected and the son abused, findings that were not challenged by way of an appeal. As a matter of law, the memorandum of decision was clear and convincing evidence that the children had been found neglected in a prior proceeding.

Judge Crawford took issue with Judge Trombley’s finding and reconsidered the issue under the clear and convincing standard of proof. The father argues before us that by putting into evidence facts that were before Judge Trombley during the trial on the neglect petitions, the petitioner invited Judge Crawford to reconsider whether the children were neglected. We disagree. The petitioner properly placed into evidence the facts that led to the orders of temporary custody and findings of neglect. Such evidence was necessary to consider the respondents’ rehabilitative status vis-a-vis the causes for commitment and whether the causes of the commitment continue to exist. See In re Cesar G., 56 Conn. App. 289, 294, 742 A.2d 428 (2000); see also In re Allison G., 276 Conn. 146, 154 n.4, 883 A.2d 1226 (2005) (psychologist’s report material in future proceedings to determine permanent custody).

A finding of neglect is an integral part of the statutory scheme to protect the welfare of children and the parents’ right to the custody and care of their children. “A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named.” In re David L., 54 Conn. App. 185, 191, 733 A.2d 897 (1999). See footnote 21 of this opinion. In a neglect proceeding, the commissioner of children and families “acts not to vindicate her personal rights but, acting for the state as parens patriae, to ensure, first and foremost, the child’s safety and, second, a permanent placement of the child as expeditiously as possible.” In re Allison G., supra, 276 Conn. 158-59. An adjudication of neglect has a concomitant purpose: it requires the court to issue specific steps to facilitate the reunification of the parent and child. See General Statutes § 46b-129 (j); In re Allison G., supra, 160-61. “Although the specific steps provide a benchmark by which the court measures whether either reunification or termination of parental rights is appropriate, the court necessarily will consider the underlying adjudication and the attendant findings. . . . Therefore, the adjudication and findings serve a dual function—they provide a context to the court for the specific steps and they provide notice to the parents of issues that may be relevant to the court in determining a permanent plan for the child’s custody.” (Citation omitted.) In re Allison G., supra, 161.

The hypothetical provided by our Supreme Court in In re Allison G. is on point with the issue in this appeal. “For example, in the adjudication of a neglect petition, the trial court could find that a parent had perpetrated abuse on his or her child or had knowingly allowed the abuse to occur but nevertheless denied responsibility for the harm. The department may then propose as one of the steps that the parent undergo counseling to understand the causes and consequences of abuse. In a subsequent proceeding, whether the parent ever acknowledged responsibility for the abuse would be relevant to the court’s subsequent determination as to either reunification or termination of parental rights, irrespective of whether the parent had complied with that step.” Id. In the case before us, the steps proposed by the petitioner to facilitate the mother’s rehabilitation so that she could be reunited with the children, therefore, were predicated on the findings of neglect.

The decisions of our appellate courts make clear that to challenge the outcome of a proceeding in the statutory scheme of our child welfare law, a party must appeal timely from the adjudication of the separate proceedings in the trial court. In In re Kachainy C., supra, 67 Conn. App. 401, the respondent mother claimed that it was improper for the trial court adjudicating the termination of parental rights petition to have relied on a finding made during a hearing on the extension of commitment because the finding was not made by clear and convincing evidence. The respondent mother did not appeal from the extension of commitment and finding that reunification efforts were no longer appropriate. Id., 412. This court concluded that the respondent mother’s claim was not reviewable because “[a]n extension of commitment is an immediately appealable final judgment. . . . The issue may not be raised as a collateral attack on the judgment terminating parental rights.” (Citation omitted.) Id. The court “adjudicating the termination petition was entitled to rely on [the prior] finding.” Id., 413.

In In re Shamika F., 256 Conn. 383, 773 A.2d 347 (2001), the court held that an order of temporary custody is a final judgment for purposes of appeal and that those orders may not be “postponed” until the final judgment terminating parental rights is rendered. Id., 384-85. “[Temporary custody orders are immediately appealable because an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected . . . and, further, that an immediate appeal is the only way to ensure the protection of the best interests of children. We conclude, therefore, that the respondent’s collateral attack on the temporary custody order, after the order terminating parental rights has been entered, is a procedurally impermissible substitute for an appeal.” (Citation omitted; internal quotation marks omitted.) Id., 385-86; see also Pamela B. v. Ment, 244 Conn. 296, 321, 709 A.2d 1089 (1998) (commitment legally supersedes order of temporary custody); In re Carl O., 10 Conn. App. 428, 434, 523 A.2d 1339 (order of temporary custody expires once child found neglected), cert. denied, 204 Conn. 802, 525 A.2d 964 (1987).

There are constitutional rights and public policy interests that support the appealable nature of orders that constitute a final judgment along the path to the termination of parental rights. See footnote 24 of this opinion. Moreover, our child welfare laws are designed in such a way that subsequent proceedings are predicated on findings made and orders issued in prior proceedings. Our sister states with similarly designed comprehensive child welfare laws also require an aggrieved party to appeal to contest interlocutory findings and orders of the trial courts of those states. See, e.g., Osborne v. Dept. of Human Services, 98 Ark. App. 129, 242 S.W.3d 138 (2007); S.J. v. Dept. of Health & Rehabilitative Services, 700 So. 2d 71 (Fla. App. 1997); In re D.D., 643 S.E.2d 83 (N.C. App. 2007). “[C]ourts and state agencies must keep in mind the constitutional limitations imposed [upon them when they undertake] any form of coercive intervention in family affairs . . . [which includes] the right of the family to remain together without the . . . interference of the awesome power of the state.” (Internal quotation marks omitted.) In re Shamika F., supra, 256 Conn. 403.

The best interests of the children, especially their interests in family stability and permanency, support the conclusion that findings in earlier child welfare proceedings cannot be attacked collaterally in later proceedings. Id., 405. When a parent has failed to challenge timely a court’s finding, “the children’s strong interest in stability counsels firmly against allowing a belated appellate challenge to that temporary order.” Id. “[A]ppeals are obligatory so that parents may act in the best interest of their children. A grave injustice would be committed against children if a parent were permitted to appeal from a judgment of temporary custody long after they had established a stable relationship with foster parents. We therefore protect the best interest of the children by requiring parents immediately to appeal decisions that . . . interfere substantially with their family integrity. Those parents must do so in a timely fashion not only to protect themselves, but also to protect the children.” Id., 406.

On the basis of those same constitutional rights and public policy reasons, a trial court may not, in a subsequent proceeding, disregard and permit relitigation of, a factual or legal determination made or an issue decided in a prior proceeding. Such reconsideration is fundamentally inconsistent with the relevant statutory scheme and is unfair to the petitioner, who represents the state’s parens patriae interest, as well as unfair to the respondent parents and the children. The department sets about to do its work pursuant to the findings made and steps ordered pursuant to a trial on a neglect petition. Those findings and orders place the respondent parents on notice as to what is expected of them if they are to regain custody of their children. The best interests of children is guided by their need for permanency; see In re Jonathan M., 255 Conn. 208, 232, 764 A.2d 739 (2001); which cannot be achieved if there is no finality to the intermediate findings made along the path to termination of parental rights. We therefore conclude that a finding that a child is neglected and abused made by a trial court when adjudicating a neglect petition constitutes an appealable final judgment. If no appeal is filed in a timely fashion, the parents may not collaterally attack those findings during a termination of parental rights trial, and the trial court adjudicating the termination of parental rights is bound by the findings made in the prior proceeding. It was therefore improper for the court to disregard Judge Trombley’s finding of neglect and to conclude that “the alleged sexual abuse by the father appears to have been a pretext to remove the children.” Moreover, the court’s improper redetermination of the grounds for neglect was the basis for the rest of its findings and necessarily infected those findings, which cannot stand.

II

The petitioner’s second claim is that the court failed to give preclusive effect to the finding made on the basis of the neglect proceeding that further efforts to reunify the father with the son were inappropriate. We agree.

In his memorandum of decision on the neglect petitions, Judge Trombley stated, in part, that “[i]n accordance with ... § 46b-129 (k) (2), and in consideration of the best interests of these three children and their need for permanency, this court finds, as to the father, that continued efforts by the department to reunify the father with any and all of these children are no longer appropriate. That finding is made upon clear and convincing evidence.” The father failed to appeal from the court’s finding of neglect and abuse as to him. In her memorandum of decision, however, Judge Crawford stated that “[t]his court finds that [the department] failed to prove by clear and convincing evidence that it made reasonable efforts to reunify [the son] with his parents.”

General Statutes § 17a-lllb (a) provides: “The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court ... (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.” The Superior Court may grant a petition to terminate parental rights “if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts ... to reunify the child with the parent . . . except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb . . . that such efforts are not required. ...” General Statutes § 17a-112 G).

The issue presented was resolved by this court in In re Kachainy C., supra, 67 Conn. App. 401. The language of the statute “is clear: A finding that it is no longer appropriate for the department to make reasonable efforts to reunite the family must be made only once .... Common sense also tells us that it would be a waste of judicial resources to require courts to make redundant findings.” Id., 412. For this reason, it was inappropriate for the court to reconsider whether the department had made reasonable efforts to reunite the son with the father.

III

The petitioner claims that the court improperly determined that the department failed to make reasonable efforts to reunify the mother with her children. We agree.

The record before us discloses that the son was adjudicated neglected and abused as a consequence of the father’s sexual abuse and that he was living in circumstances and associations injurious to his well-being. As to the respondents’ daughters, there was a substantial risk that harm would be perpetrated on them, too. They were being denied proper care and attention, emotionally and morally, and they were or would have been living under conditions, associations and circumstances injurious to their well-being. The steps Judge Trombley ordered for the mother were predicated on those findings. In order to determine whether the department had made reasonable efforts to reunify the mother with the children, the steps and services ordered had to be viewed in the context of the findings of neglect. See In re Allison G., supra, 276 Conn. 160-61. Judge Crawford impermissibly determined, however, that there was no evidence of sexual abuse on the part of the father because the son never reported the abuse to anyone other than Corradi. Without placing the rehabilitative services offered by the department in the context of the father’s sexual abuse and the mother’s need for services, the court could not evaluate properly the department’s efforts to reunify. For this reason, the court improperly found that the department failed to make reasonable efforts to reunify the mother with her children.

IV

The petitioner’s fourth claim is that the court’s finding as to the parent-child relationship between the son and the respondents was clearly erroneous. We agree.

Parental rights may be terminated “if the court finds that 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 .... [Termination of a noncustodial parent’s rights requires a finding that the child has no present memories or feelings for the natural parent.” (Citation omitted; internal quotation marks omitted.) In re Ilyssa G., 105 Conn. App. 41, 47, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008). “Feelings for the natural parent connotes feelings of a positive nature only.” (Internal quotation marks omitted.) In re Christian P., 98 Conn. App. 264, 269, 907 A.2d 1261 (2006).

Kathy Douglas, a clinical social worker, testified at the trial. Douglas was the son’s therapist and met with the boy on a weekly basis from November, 2003, until the time Douglas testified. The son appeared to have no recollection of life prior to the time he spent in foster care. He never mentioned the respondents during his therapy sessions. Douglas opined that the son’s not remembering the respondents is a mechanism he uses to cope with the trauma he sustained. “The psychological testimony from professionals is rightly accorded great weight in termination proceedings.” In re Nicolina T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).

This court has determined that parental rights cannot be terminated on the basis of the lack of a parent-child relationship when “the lack of an ongoing parent-child relationship between the respondent and the child was the direct result of the fact that the child was in foster care . . . .” (Internal quotation marks omitted.) In re Alexander C., 67 Conn. App. 417, 424, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003). Judge Crawford found that the department removed the son from the respondents’ care in August, 2002, and suspended the respondents’ visits with the son in February, 2003, on the basis of Bowen’s evaluation of the son. The court, however, found the documents on which Bowen relied to be unreliable and doubted that the father had abused the son.

On the basis of our review of the record, including the reports of the numerous experts in the mental health and social services fields who have been involved with this family, we cannot discern that the lack of an ongoing parent-child relationship is the fault of the department. The father created the circumstances leading to the removal of his son from the family home and the termination of visitation by sexually assaulting the boy and failing to participate in a meaningful way in sexual abuse therapy. This fact was found at the neglect hearing and may not be reconsidered in the termination of parental rights trial. See part I of this opinion. Moreover, Judge Trombley found by clear and convincing evidence that efforts to reunify the father with his son were no longer appropriate.

As to the mother, Judge Trombley found that efforts to reunify her and her children should be made if the mother was willing to accept services from the department. Although the mother has refused to acknowledge that the father abused the son and there was much discussion about whether she needed to acknowledge that fact in order to receive services, the mother has not accepted that regardless of who molested her son, she needs therapy and support services to understand how to protect her children. Judge Trombley conditioned the mother’s right to visit with her son on her complying with his orders for an evaluation and therapy. The mother did not appeal from those orders. Moreover, she cannot continue to live with the father and be reunited with her children. We therefore conclude that there is no evidence in the record to support the court’s conclusion that the lack of an ongoing parent-child relationship was a direct result of the son’s being in foster care. See In re Alexander C., supra, 67 Conn. App. 424. To the extent that Judge Crawford found that the petitioner was responsible for the lack of an ongoing parent-child relationship, that finding is clearly erroneous.

The judgments are reversed and the cases are remanded for a new trial.

In this opinion the other judges concurred.

       In this opinion, we refer to the respondents collectively as the respondents and individually as the mother or the father.

       Counsel for the children has adopted the brief of the petitioner.

       The petitioner claims that the court improperly (1) rejected the undisputed evidence that the parents had failed to achieve a sufficient degree of personal rehabilitation, (2) failed to give preclusive effect to the finding that continued efforts to reunify the father with his children were no longer appropriate, (3) found that the department of children and families did not make reasonable efforts to reunify the mother with the children, (4) applied the law regarding an ongoing parent-child relationship between the respondents and their son, and (5) failed to give appropriate weight to the petitioner’s evidence.

       The trial of the neglect petitions was delayed because the respondents were being represented by the same attorney. Judge Trombley ordered the appointment of separate counsel for the respondent mother in the interest of justice and rule 1.7 of the Rules of Professional Conduct. The court concluded that dual representation of the mother and father was inappropriate in that it deprived the mother of the opportunity to pursue an alternate course of action, specifically, reunification with the children without the father’s participation.

       The respondent mother is not T’s mother.

       The application for an arrest warrant for the father’s arrest included the following factual allegations. T disclosed two specific incidents of sexual assault. In November, 1991, when T was five years old, the father threw her onto a bed, pulled down her pants, covered her head with a pillow, lay on top of her and put his private parts next to hers. The second incident occurred in September, 1994, when T was eight years old. The father placed a cushion from a couch over her face, lay on top of her with his pants down. T tried to force him off by kicking him. T then reported the incidents to her mother. When T’s mother confronted the father with the allegations, the father responded: “If I did, I did; if I didn’t, I didn’t. But if you tell the police, I’ll blow you away.”

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       In the arrest warrant, the probation officer alleged that the father was “totally unwilling to discuss any issues or circumstances regarding his new family [mother and son] situation or any issues pertaining to his personal life.” The probation officer expressed concern that the father was living in the same home as his son.

       In his investigation report, Corradi reported the following on the basis of his interview with the son on August 19, 2002. “[The son] told this trooper that he lied last week because he was scared and didn’t want his daddy to go back to jail. [The son] went on to state that it was not his Uncle Ray . . . that had been touching his pee pee and butt. T like Uncle Ray,’ he replied. [The son] stated that it was dad [the respondent] who was trying to touch his pee pee. [The son] said that dad tries to touch his pee pee at night when he is in bed sleeping. [The son] then put his hand down the front of his shorts and said that dad shakes it and when he does that he has his pee pee out and it is small like his then it gets real, real big and he tries to put it in his butt .... [The son] then said that dad stops touching his pee pee and then white stuff comes out of daddy’s pee pee. [The son] continually pointed to his lower back/butt area and his penis and stated that ‘Daddy tries to touch my pee pee and butt.’ ”

       In her report dated February 7, 2003, Bowen stated that when the son was shown an anatomically correct drawing of an adult, white male, frontal view, he said, “Daddy. That’s my Daddy.” The son also stated, “I have seen Daddy’s pee-pee. It’s bigger. Mine is small.” When the son was shown a posterior view of an adult male, he stated, “That’s daddy’s butt. I have seen Daddy’s butt.”
      Bowen questioned the son about the boy’s conversation with Corradi. The son said, “I remember telling the policeman buddy. He’s my buddy.” The son told Corradi “about [d]addy and his pee pee.” The son refused to answer other questions about what he told Corradi. When asked whether Uncle Ray had ever touched his pee pee or if he had seen Uncle Ray’s pee pee, the son denied that Uncle Ray had ever touched his penis or shown the son his own penis. The son liked Uncle Ray and said “he wouldn’t do that.”
      When Bowen asked the son if the father had ever touched his pee pee, the son replied: “Daddy say not to talk about pee pee or he will go to jail. . . . Daddy went to jail, then ran out of jail very fast. . . . Daddy took me and mommy to the jail. ... In the car, he showed us.”

       “Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.” In re Michael D., 58 Conn. App. 119, 124, 752 A.2d 1135, cert. denied, 254 Conn. 911,759 A.2d 505 (2000); see also In re T.K., supra, 105 Conn. App. 513.

       Judge Trombley found that the son’s “disclosures of the father’s sexual molestation, which were made to the trooper, were rehable and trustworthy under all the circumstances, in particular, the child’s graphic statement as to the result observed by this four year old of his father’s erection!”

       With regard to the younger daughter, whom the petitioner took into custody from the hospital when she was only several days old, the court predicated its finding on the doctrine of predictive neglect. See In re Michael D., 58 Conn. App. 119, 124, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).

       Judge Trombley found that the “ [m]other was put in a ‘catch-22’ situation when Northeast Clinical Specialists refused her admission to their program, as the mother would not believe [the son’s] disclosures. The mother did not get the therapy because she didn’t meet the therapeutic prerequisites. Yet, the mother was deprived of any opportunity to visit [the son] because she didn’t do the therapy! The department should have recognized the mother’s dilemma and should have arranged visits. The result is that this nonoffending mother has not seen her son since January 24,2003, over a year and a half! Visits between [the son] and the mother should be therapeutically reinstated and implemented if recommended as a result of the mother’s evaluation.”

       Judge Trombley stated: “The mother will have to make the difficult choice of continuing in her belief of the father’s innocence and continuing to reside in a marital relationship with him or in the belief of her son and accepting the compelling evidence and severing all ties to her husband. The mother will have to make this difficult, life-changing decision in the near future, as the [petitioner], without further delay, moves toward termination. This court will afford the mother the opportunity to consider the alternatives devoid of the influence of the father and his attorney.”

       Randall found that until six months prior to her evaluation, the father abused alcohol. In the intervening six months, the father substituted diet pills for alcohol.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... the child ... (3) ... (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . (ii) . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.)

         General Statutes § 17a-112 CD provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation . . . the care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being . . . .”

       General Statutes § 17a-112 CD provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (D) 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 . . .

       Judge Crawford issued a corrected memorandum of decision on September 24, 2006. The corrections were largely editorial in nature and are not at issue here.

       “The applicability of the doctrines of collateral estoppel or res judicata presents a question of law that we review de novo.” Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007). “Claimpreclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum.” (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn. App. 180, 186, 834 A.2d 744 (2003).
      “The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 772, 770 A.2d 1 (2001); see also In re Juvenile Appeal (83-DE), supra, 190 Conn. 316.
      A neglect petition and a petition for the termination of parental rights present distinct and separate claims. “[A]n abdication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. . . . [T]he adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the children are neglected . . . . ” (Emphasis in original; internal quotation marks omitted.) In re T.K., supra, 105 Conn. App. 505-506.
      A petition to terminate parental rights “may irrevocably sever the relationship between parent and child”; In re Alexander V., 223 Conn. 557, 561, 613 A.2d 780 (1992); and consists of two phases: the adjudicatory phase and the dispositional phase. “During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights . . . exists by clear and convincing evidence.” In re Eden F., 250 Conn. 674, 688, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999). “If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase [where the] court must determine whether termination is in the best interests of the child.” Id., 689.

       Moreover, the mother concedes that her children were found to be neglected in a prior proceeding. The father does not dispute that Judge Trombley found the children to be neglected but argues that the finding was not made by clear and convincing evidence. The preponderance of the evidence standard, however, applies in a neglect proceeding. See In re Juvenile Appeal (84-AB), 192 Conn. 254, 264, 471 A.2d 1380 (1984).

       As noted, Judge Trombley found by clear and convincing evidence that further efforts to reunite the father with the children were no longer appropriate.

       Our Supreme Court held in In re Shamika F., supra, 256 Conn. 403, that an order of temporary custody was an immediately appealable final judgment pursuant to State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (an “otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them”). “[A] temporary custody order may have a significant impact on a subsequent permanent custody decision . . . [by] establishing] a foundation for a stable long-term relationship that becomes an important factor in determining what final custodial arrangements are in the best interests of the child. . . . [Our Supreme Court] concluded that temporary custody orders did so [conclude] the rights of the parties that further proceedings [could not] affect them . . . .” (Citations omitted; internal quotation marks omitted.) In re Shamika F., supra, 403; see also Madigan v. Madigan, 224 Conn. 749, 757, 620 A.2d 1276 (1993) (temporary custody orders immediately appealable because immediate appeal is only reasonable method of ensuring important rights surrounding parent-child relationship adequately protected).

       During a trial on the termination of parental rights, the issue to be litigated with respect to failure to achieve personal rehabilitation; General Statutes § 17a-112 (j) (3) (B) (ii); is whether the respondent parents can be restored to a constructive useful role as a parent within a reasonable time considering the age and needs of the child or children. See In re Danuael D., 51 Conn. App. 829, 840, 724 A.2d 546 (1999). That issue may be decided, in part, pursuant to a parent’s success in complying with the court-ordered steps. Both the petitioner and respondent may put on evidence in this regard.

       Because we remand the cases for a new trial, we need not reach the remainder of the petitioner’s claims and arguments as to her allegation of failure to achieve rehabilitation.

       The respondents have never appealed from the suspension of their visitation with their son.

       We need not consider the petitioner’s final claim that the court failed to give appropriate weight to her evidence, as the issue is not likely to occur on retrial.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    TYLER E. LYMAN, INC. v. 19 THAMES STREET PARTNERSHIP ET AL.
    (AC 28194)
    Gruendel, Kobinson and Foti, Js.

      Argued March 27
    officially released August 12, 2008

      Alan R. Messier, with whom, on the brief, was Vincent Provenzano, for the appellant (plaintiff).

      Michael S. Bonnano, with whom, on the brief, were PaulM. Geraghty and Marisa A. Mascolo, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The plaintiff, Tyler E. Lyman, Inc., appeals from the judgment of the trial court, which determined that the plaintiff is not entitled to a brokerage commission on a 2002 lease entered into between the defendant 19 Thames Street Partnership and the defendant’s lessee. On appeal, the plaintiff claims that the court improperly concluded that the current occupant of the defendant’s premises is not necessarily the defendant’s “tenant” and, as a consequence, mistakenly held that there was no renewal of a 1997 lease brokered by the plaintiff. We disagree and affirm the judgment of the trial court.

On November 4, 1996, the plaintiff, a licensed real estate broker, entered into a listing agreement with the defendant under which the plaintiff would attempt to find a tenant for commercial real estate owned by the defendant. The agreement provided that if the plaintiff found a tenant for the premises, it would be entitled to a broker’s commission totaling 10 percent of the initial lease price and an additional 5 percent of any renewal lease price. The plaintiff procured Proto-Power Corporation (Proto-Power) to lease the premises, which entered into a five year lease with the defendant for occupancy of 15 Thames Street. As a part of the leasing transaction, Proto-Power’s parent company at the time, Kollmorgen Corporation (Kollmorgen), guaranteed Proto-Power’s obligations under the lease. The plaintiff received its commission on this five year lease.

On October 13, 2000, during the course of the five year lease term, Utility Engineering Coiporation (Utility Engineering) acquired Proto-Power from Kollmorgen. Shortly thereafter, Utility Engineering sent a letter to the defendant, indicating that it owned all stock in Proto-Power and acknowledging responsibility for Kollmorgen’s guarantee of the 1997 lease agreement.

Upon the expiration of the 1997 lease, Proto-Power did not renew, nor did it execute a new lease with the defendant. Prior to the termination of the 1997 lease in early 2002, however, Utility Engineering, Proto-Power’s parent corporation, entered into an agreement with the defendant to lease the building occupied by ProtoPower, 15 Thames Street, in addition to the adjacent building, number 19. Proto-Power was not a party to this new lease and is not listed as a tenant in the agreement. Utility Engineering moved into the new additional space acquired under the 2002 lease, but Proto-Power continued to possess and occupy the same space it had under its 1997 lease and did so through the time of trial.

In response, the plaintiff commenced the present action. Its complaint alleged that the 2002 lease between the defendant and Utility Engineering actually constituted a renewal of the 1997 lease between the defendant and Proto-Power, thereby entitling the plaintiff to a commission under the original listing agreement. Specifically, the complaint alleged (1) breach of the listing agreement, (2) breach of the implied covenant of good faith and fair dealing and (3) unjust enrichment. After the court granted the defendant’s motion for summary judgment as to the unjust enrichment claim, the remaining two counts were tried to the court. The court found in favor of the defendant on both, concluding that the tenant under the 2002 lease was Utility Engineering and not Proto-Power and that, consequently, there could be no renewal of the 1997 lease and no breach of the listing agreement. This appeal followed.

The question of whether a lease has been renewed is one of fact for the determination of the trial court. Perrotti v. Chiodo, 21 Conn. App. 288, 290, 573 A.2d 342 (1990). Accordingly, we will reverse the court’s factual determinations only if they are clearly erroneous. See Costa v. Costa, 57 Conn. App. 165, 168, 752 A.2d 1106 (2000). The plaintiff contends that the court mistakenly concluded that Proto-Power was not a tenant under the 2002 lease. It argues that Proto-Power was indeed the defendant’s tenant under the terms of the listing agreement. It claims that, this being the case, the fact that the tenant remains in possession of the premises indicates that there was, in fact, a renewal. We address each of these claims in turn.

I

We first consider whether the court erroneously determined that Proto-Power is not the defendant’s tenant. We begin by noting that there is no dispute that Proto-Power was a tenant of the defendant under the 1997 lease—the dispute is over whether it remained a tenant under the 2002 lease. The thrust of the plaintiffs argument seems to be that by affirming the court’s finding that Proto-Power was not a tenant under the 2002 lease, we would permit landlords and tenants to avoid paying brokerage commissions by simply allowing another party to sign a renewal lease. We see little danger of this, as there is ample evidence in the record from which the court could have concluded that Proto-Power was not a tenant under the 2002 lease.

A

The listing agreement between the plaintiff and defendant provided for “[c]ommissions on any renewals . . . between [the defendant] and this tenant . . . .” The court found that the lease between Proto-Power and the defendant was not renewed, a consequence of which is that the plaintiff cannot be entitled to additional commission. In so concluding, the court held that ProtoPower was not a “tenant” under the 2002 lease.

The plaintiff argues that because Proto-Power remains “in the same possession of the same premises doing the same thing under the same name,” it remains a tenant of the defendant. The evidence, however, indicates to the contrary. First and foremost, there is the 2002 lease itself, which was executed by the defendant as “LANDLORD” and Utility Engineering as “TENANT.” This is particularly pertinent when compared to the 1997 lease, which was executed by Proto-Power as “TENANT.” In addition, Raymond Langfield, one of the managers of the defendant’s business, testified at trial that he considered Utility Engineering a “completely new tenant” under the 2002 lease. He further testified that his negotiations regarding the 2002 lease were primarily with A1 Lucas, the facilities manager of Utility Engineering, rather than with a representative of ProtoPower. Although there is also evidence that Langfield had correspondence with Kenneth Ewell, the president of Proto-Power, this is not dispositive. Ewell, while president of Proto-Power, was also a vice president of Utility Engineering.

There is also substantial evidence in the record indicating that Proto-Power actually was intending to move out of the space on Thames Street until its parent company decided to lease the property. Langfield testified that his communications with Ewell were separate negotiations from those with Utility Engineering. He indicated that he was attempting to convince ProtoPower to remain in the building quite apart from negotiating with a potential new tenant. In addition, Ewell testified that Proto-Power was intending to move out of the Thames Street space. Indeed, Ewell noted that Utility Engineering and Proto-Power were looking for a new space together and that only later did Utility Engineering consider leasing the Thames Street property. Accordingly, the court could conclude that ProtoPower was not the tenant under the 2002 lease simply because it was intending to move in with its parent company wherever the parent company happened to find space and that the parent company found space on Thames Street on its own. In light of the foregoing, we cannot say that the finding that Proto-Power was not a tenant under the 2002 lease was clearly erroneous.

B

The court also based its determination that ProtoPower was not a tenant under the 2002 lease on corporations law concepts. It held that even though Utility Engineering owns Proto-Power, as a parent corporation, it is “a distinct legal entity from its subsidiary.” Whether the legal conclusion that Proto-Power and Utility Engineering are distinct legal entities is supported by sufficient facts is a mixed question of law and fact over which our review is plenary. See Friezo v. Friezo, 281 Conn. 166, 180, 914 A.2d 533 (2007).

“[I]t is a fundamental principle of corporate law that ‘the parent corporation and its subsidiary are treated as separate and distinct legal persons even though the parent owns all the shares in the subsidiary and the two enterprises have identical directors and officers.’ ” SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 232, 585 A.2d 666, cert. denied, 501 U.S. 1223, 111 S. Ct. 2839, 115 L. Ed. 2d 1008 (1991), quoting H. Henn & J. Alexander, Laws of Corporations (3d Ed. 1983) § 148, p. 355. We respect the distinct identity of a corporation from its shareholder-parent corporation unless: (1) the parties intermingle assets, accounts, records, employees and business transactions; (2) they flout corporate formalities; (3) there is insufficient capitalization as a separate entity; (4) the parties hold themselves out to the public as a single entity; or (5) one entity directs its policies primarily to the benefit of the other corporation and not its own. See id., 232-33, quoting H. Henn & J. Alexander, supra, § 149, pp. 355-56. In this case, there is no evidence that any of these five exceptions has been met.

There are no allegations that there was an intermingling of assets, records, or business transactions. Although Ewell was both the president of Proto-Power and a vice president of Utility Engineering, this does not indicate that the corporations impermissibly intermingled employees. See id., 232 (noting that corporations will be treated as distinct even if they have identical directors and officers). Indeed, Proto-Power and Utility Engineering have different market focuses, which preclude an intermingling of business transactions. While Proto-Power designs nuclear power plants, Utility Engineering focuses on fossil fuel power plants. This fact also indicates that the corporations were not held out to the public as a single entity.

In addition, there has been no flouting of corporate formalities. This is illustrated by the fact that Utility Engineering purchased Proto-Power during the term of the 1997 lease and that Proto-Power has since been sold, which indicates that the two corporations were sufficiently separate to allow Utility Engineering to buy and sell Proto-Power in its entirety.

Finally, there is no evidence in the record that would tend to show that either corporation directed its policies primarily to the benefit of the other or that Proto-Power was insufficiently capitalized. Consequently, we agree with the court that Proto-Power and Utility Engineering were separate and distinct entities. As such, when Utility Engineering entered into the 2002 lease, it did so as a separate legal entity from Proto-Power.

II

We now move onto the broader question of whether there was a renewal of the 1997 lease, which would entitle the plaintiff to a commission under the listing agreement. As noted previously, the question of whether a lease has been renewed is one of fact for the determination of the trial court. Perrotti v. Chiodo, supra, 21 Conn. App. 290. The foregoing discussion with regard to whether Proto-Power was a tenant under the 2002 lease largely obviates the need for further discussion. If there were two different tenants under the two leases, there could be no renewal.

In addition, we agree with the court that in this case, “[t]he signing of a new lease by a different tenant demonstrates the opposite of renewal.” The 1997 lease and the 2002 lease were signed by different corporations. Moreover, although the 2002 lease did include the space that was the subject of the 1997 lease, the 2002 lease was for a much larger space.

Significantly, we note that the 1997 lease provided for the option of renewal “on the same terms and conditions” as provided in that document. It is clear that the terms of the 2002 lease were substantially different in light of the additional premises acquired under the 2002 lease. Although the lease between the defendant and its tenant is not determinative of the parties’ obligations under the listing agreement between the plaintiff and defendant, the listing agreement did require that the defendant provide the plaintiff with a copy of the executed lease. There is no allegation that the defendant breached the listing agreement by failing to provide the plaintiff with a copy of the 1997 lease. As such, the plaintiff would have been aware of the procedure and terms for renewal of the 1997 lease and apparently did not object to the renewal provisions in the document. We therefore conclude that the court’s finding that there was no renewal of the 1997 lease was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The action was brought against 19 Thames Street Partnership and its general partners: Helen Langfield; Louise Chesler; Jonathan E. Sanders; Ellen Sanders Nirenstein; Joanna Langfield Rose; Alfred Agrin; Sybs, Inc.; Calema 1, LLC; Stanley Bergman, trustee for the Harry Elion Trust PBO; Stanley Bergman, trustee for the Elion Langfield Trust; and Jeffrey Nirenstein, trustee for the Esther E. Smithline Trust. For simplicity, we refer to 19 Thames Street Partnership as the defendant.

       The plaintiff has raised no claim with respect to either the claim of unjust enrichment or that of breach of the covenant of good faith and fair dealing in this appeal.'

       The plaintiff also urges us to consider General Statutes § 47a-l (Í), which provides that the definition of tenant includes- any person “entitled under a rental agreement to occupy a dwelling unit or premises . . . .” It argues that we should interpret the word “tenant” as meaning an entity with occupancy of, but without title to, property as was expounded in Southington v. Francis, 159 Conn. 64, 71, 266 A.2d 387 (1970), which was interpreting statutory text. The defendant correctly points out, however, that the statutory definition of the term does not necessarily apply to the term as used in a contract between the parties. The question of the intended meaning of the terms in the listing agreement is one of fact, not law. See Bead Chain Manufacturing Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981).

       Although the parties do not dispute the fact that Proto-Power and Utility Engineering were distinct entities, the defendant’s arguments to illustrate that Proto-Power was not a tenant under the 2002 lease focus on the distinct nature of the two corporations.


author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. MICHAEL DIFANO
    (AC 28472)
    Graendel, Robinson and Borden, Js.

      Argued May 29
    officially released August 12, 2008

      Conrad Ost Seifert, with whom was Peter W. Rotella, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, Geoffrey E. Marion, former senior assistant state’s attorney, and Jennifer L. Springer, certified legal intern, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Michael DiFano, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1). On appeal, the defendant claims that the trial court improperly failed to instruct the jurors that they were to draw no unfavorable inferences from his decision not to testify pursuant to General Statutes § 54-84 (b). Specifically, the defendant argues (1) that he did not request that the charge not be given, within the meaning of the statute, and (2) in the alternative, that to the extent that his counsel requested that the “no unfavorable inferences” charge not be given, the waiver was ineffective because the statute mandates that the defendant personally waive the right to the charge. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The defendant was charged, in a substitute information, with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (1). The defendant elected a jmy trial. After the close of evidence, and after the court had charged the jury, the court raised, sua sponte, the issue of whether it should recall the jurors to charge them in conformance with § 54-84 (b). The following colloquy ensued:

“The Court: [T]here is something I would like to clear up. ... It was in the preliminary instructions twice; I didn’t have a specific instruction about the fact that [the . defendant] didn’t testify and that [the jurors are] not to hold it against him. You . . . want me to bring attention to that or not? I’m willing to bring them out— bring them out, although I’ve done that twice before, that you’re not to hold it against him.
“[Defense Counsel]: I think the court has addressed that issue and taken care of that problem.
“The Court: I just want to make sure because some people might have felt that it’s something that should be said again, but I believe it has been covered twice.
“[Defense Counsel]: No, I’m satisfied with that.
“The Court: All right. So, anything else?” (Emphasis added.)

The court then moved on to other matters, and the jurors were not provided with a charge pursuant to § 54-84 (b). Subsequently, the jury returned a verdict of guilty, and the court rendered judgment on the verdict. This appeal followed.

I

The defendant claims first that his counsel did not request that the § 54-84 (b) charge not be given, and, therefore, the court improperly failed to charge the jury that it was to draw no adverse inference from the defendant’s failure to testify. We disagree.

Section 54-84 (b) provides in relevant part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. ...” (Emphasis added.) “[T]his charge must be given unless the defendant requests otherwise.” State v. Burke, 182 Conn. 330, 333, 438 A.2d 93 (1980). “[T]he statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given. . . . Our legislature has prescribed the language provided in § 54-84 (b) to be the jury instruction that must be given to reduce speculation to a minimum.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). “[T]he total omission of the no adverse inference instruction is plain error that is not subject to a harmless error analysis. The unconditional language of the statute is a legislative mandate and the failure to use that language is a pivotal aspect of the defendant’s privilege against self-incrimination.” (Internal quotation marks omitted.) State v. Cruz, 59 Conn. App. 426, 430, 757 A.2d 74, cert. denied, 254 Conn. 947, 762 A.2d 904 (2000).

Although it is a close case, we conclude that the defendant’s colloquy with the court constituted the functional equivalent of a “[request] otherwise,” namely, a request that the court not deliver a “no unfavorable inferences” instruction. There is no specific talismanic language necessary to constitute such a request. The court raised the issue itself and offered to give the instruction without any further request or other action by defense counsel. Defense counsel, instead of remaining silent or simply accepting the court’s offer, affirmatively spoke against giving the instruction. When the court asked if defense counsel wanted it to give the instruction, defense counsel stated that he was satisfied that the substance of the instruction had been covered. The court asked a second time, and defense counsel again stated that he was satisfied with the court’s prior instructions. In context, we conclude that it was reasonable for the court to interpret defense counsel’s representations as. an affirmative request not to recall the jury and deliver the “no unfavorable inferences” charge pursuant to § 54-84 (b).

The defendant first directs the attention of this court to State v. Stewart, 64 Conn. App. 340, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). In that case, as in this case, the defendant did not testify, and the trial court omitted the “no unfavorable inferences” charge. Unlike the situation in this case, the parties and the court in Stewart discussed during a precharge conference whether to deliver the charge. The initial conference was conducted on April 16,1998. This court summarized the substance of that discussion as follows: “The court reviewed the preliminary requests to charge dining the conference. The defendant’s counsel made a specific request that the court omit any reference to the defendant’s failure to testify. The court reminded counsel of its obligation under [§] 54-84 (b). The court further advised that [the] no unfavorable inferences instruction was part of the court’s base charge. . . .

“Nonetheless, defendant’s counsel persisted in asking the court not to comment on his client’s failure to testify. In doing so, counsel stressed the word highlight in using the phrase, I don’t want to highlight his failure to testify. ...

“On April 20, 1998, the court continued its charging conference with counsel in chambers. After disclosing to counsel the substance of its charge, the court once again inquired of the defendant’s counsel whether he still wanted the court to omit the mandatoiy no unfavorable inferences charge. Defendant’s counsel reiterated that he did not wish the court to highlight his client’s failure to take the [witness] stand and requested the charge not be given.” (Internal quotation marks omitted.) Id., 343-44 n.4. On appeal, the defendant did not refute that the representations of counsel made during the precharging conferences constituted a request not to deliver the § 54-84 (b) charge.

The defendant here argues that in order for a defendant to “request otherwise,” the defendant must make the request as clearly as counsel had in Stewart. We find nothing in the statute, however, that requires the defendant to request as vigorously and repeatedly as counsel had in Stewart in order for the request not to charge to be effective, nor does the statute indicate that the defendant must inform the court of the reasons why the charge is unwanted, as had the Stewart defendant.

Next, the defendant argues that the present appeal is controlled by State v. Cruz, supra, 59 Conn. App. 426. Similar to the situation in the present case, this court in Cruz faced the question of whether a discussion regarding whether the trial court should deliver a § 54-84 (b) charge constituted a request by the defendant not to deliver the charge. The conversation took place after the court had delivered its charge to the jury. This court reviewed the following relevant colloquy in that case:

“[Defense Counsel]: Isn’t there a statutory requirement to instruct the [jury regarding the defendant’s] not testifying?
“The Court: If you requested—I asked you if you had any requests to charge on it. I’ve already given two instructions during the period of the trial. During the trial, I pointed out that he did not—that they could draw no inference from his failure to testify and so forth. However, if you want a further charge on that, I’ll be delighted to give it to you. Okay? I think it’s—I think, though, that’s something you have to request if you want it, if you want anything further. But I did cover it at least two or three times, at least once during the preliminary statement and at least two or three times during the course of the trial.
“[Defense Counsel]: All right.
“The Court: If you want something further, I’ll be happy to give it. You don’t want anything else at this stage? Anything else? Let’s do the exhibits.” (Internal quotation marks omitted.) Id., 429.

This court determined that defense counsel’s statement of “[a]ll right” and his failure to accept the court’s offer to deliver the charge did not constitute a request not to deliver the charge within the meaning of § 54-84 (b). Id., 430.

Although we acknowledge that there are certain similarities between the circumstances presented in Cruz and those of the present case, we conclude that the representations made by defense counsel here are distinguishable from those made in Cruz and, more importantly, that the representations made here constitute the functional equivalent of a request not to charge. In Cruz, the trial court, incorrectly, believed that it had no obligation, absent a request, to deliver the “no unfavorable inferences” charge. The court then offered to deliver the charge if the defendant affirmatively requested that it do so. Defense counsel failed to make such a request, but counsel’s failure to request the charge did not clearly manifest a desire that the instruction not be given. Rather, at most, it manifested an acceptance of the court’s improper interpretation of the statute and an indifference to whether the charge be given or not.

Unlike the court in Cruz, the court here raised the issue itself and offered to give the instruction without any further request or other action by defense counsel. As discussed previously, rather than remaining silent or accepting the court’s offer, defense counsel here twice affirmatively spoke against delivering the charge.

II

In the alternative, the defendant claims that § 54-84 (b) establishes a personal right to a “no unfavorable inferences” charge and that this right may not be effectively waived by counsel but only by the accused personally. The defendant acknowledges that this court previously rejected the same argument in State v. Stewart, supra, 64 Conn. App. 340. He argues, however, that Stewart should be overruled. Specifically: (1) the defendant invites us to reevaluate Stewart in light of the subsequently enacted General Statutes § l-2z, which codified the “plain meaning rule,” and overrule Stewart because § 54-84 (b) unambiguously requires the accused personally to request that the “no unfavorable inferences” charge not be given; and (2) the defendant argues that even if the meaning of “accused” is not plain and unambiguous, we should overrule Stewart as not properly interpreting the statutory provision. We are unpersuaded that the ruling of Stewart must be revisited.

Initially, we note that the record does not contain any indication that the defendant requested an en banc review of this issue. We have recognized, however, that “this court’s policy dictates that one panel should not, on its own, [overrule] the ruling of a previous panel. The [overruling] maybe accomplished only if the appeal is heard en banc.” (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).

The defendant’s claim implicates the doctrine of stare decisis. “The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 216, 939 A.2d 541 (2008); see also Herald Publishing Co. v. Bill, 142 Conn. 53, 61-62, 111 A.2d 4 (1955).

A

First, the defendant argues that we should revisit the Stewart determination in light of the enactment of § 1-2z. The defendant acknowledges that our Supreme Court has determined that § l-2z does not apply retroactively; see Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007); but argues, nonetheless, that the meaning of “accused” in the statute would have been interpreted differently by the Stewart court had the question been presented subsequent to the enactment of § l-2z.

Section l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.” Our Supreme Court has clarified that the sole purpose of the legislature in enacting § l-2z was to restore the plain meaning rule as it existed in Connecticut common law. See Hummel v. Marten Transport, Ltd., supra, 282 Conn. 501.

The Stewart court invoked the common-law plain meaning rule during its review of the statutory provision, noting: “We begin our analysis by examining the language of § 54-84 (b). As in any exercise of statutoiy interpretation, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) State v. Stewart, supra, 64 Conn. App. 348. It also noted that when possible, “statutory language should be given its plain and ordinary meaning.” (Internal quotation marks omitted.) Id., 349. The court reviewed the dictionary definition of “accused” and then surveyed the use of the term in Connecticut common and statutory law. Although it did not explicitly state that the term “accused” was ambiguous, the substance of its analysis makes clear that it found that “accused” reasonably could mean either the accused personally or the accused acting through counsel. See id., 349-55. Thus, because the Stewart court found the term to be subject to more than one reasonable interpretation, and therefore ambiguous, the defendant has failed to demonstrate that § l-2z would have had an impact on the court’s analysis had it been in effect at the time of the decision. Cf. Hummel v. Marten Transport, Ltd., supra, 282 Conn. 497 n.18. Therefore, we decline the defendant’s invitation to revisit Stewart based on the subsequent enactment of § l-2z.

B

The defendant also challenges the substance of the Stewart court’s reasoning. Specifically, the defendant asserts that the Stewart court improperly noted that “decisions concerning the composition of a jury charge fall into the category of decisions concerning the matters of trial strategy” and, therefore, because the provisions of § 54-84 (b) govern the contents of the jury charge, the decision to waive it is one that may be made by counsel.

The defendant argues that the Stewart court was mistaken in believing that decisions regarding the content of jury instructions are decisions appropriately made by counsel, rather than by the accused. He asserts in his appellate brief: “[T]he decision of waiving a statutorily mandated jury instruction intended to preserve the fundamental constitutional right of an accused not to testify is not the same type of decision required of counsel in making a spur of the moment decision to call a subpoenaed witness to the [witness] stand when the testimony of the witness may no longer be required or helpful.”

The defendant has not, however, presented any law on this subject that was not available to this court at the time of the Stewart determination. See State v. Pratt, 235 Conn. 595, 610, 669 A.2d 562 (1995). Instead, the defendant implies that interpreting “accused” to include counsel undermines the defendant’s right not to testify. He does not, however, explain how it does so.

We are not persuaded that the defendant’s argument rises to the level of the “most cogent reasons and inescapable logic” necessary to overrule a prior statutory inteipretation. We decline the defendant’s invitation to revisit Stewart’s determination that the accused’s counsel may “request otherwise” and waive the right to a § 54-84 (b) instruction on behalf of the accused, and, therefore, we reject the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-84 provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       We recognize that the court improperly determined that its preliminary no unfavorable inferences instruction was sufficient to satisfy the statute. See State v. Hicks, 97 Conn. App. 266, 277, 903 A.2d 685, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006).

       The parties have not briefed the issue of whether the timing of the court’s offer, after the jurors had been released for deliberation, makes a difference to the result of this case. Therefore, we do not address that issue.

       The Stewart defendant argued, instead, that only the defendant personally could waive the right to the charge, as discussed in part II of this opinion.

       Practice Book § 70-7 (a) provides: “Before a case is assigned for oral argument, the chief justice or the chief judge may order, on the motion of a party or sua sponte, that a case be heard en banc.” See Boccanfuso v. Conner, supra, 89 Conn. App. 285 n.20.