author: GRUENDEL, J.

text:
    IN RE RYAN R.

    (AC 26946)
    (AC 26947)
    Bishop, McLachlan and Gruendel, Js.
    Argued February 9
    officially released July 24, 2007

      Trudy Condio, for the appellant (minor child).

      Roseann C. Canny, for the appellant (respondent mother).

      Tammy Nguyen-O’Dowd, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

GRUENDEL, J.

The respondent mother and her minor child, R, appeal from the judgment of the trial court terminating the respondent’s parental rights with respect to R. On appeal, the respondent claims that the court improperly found that (1) the department of children and families (department) provided reasonable efforts to reunify her with R and that she was unable or unwilling to benefit from reunification efforts, and (2) she failed to achieve a sufficient degree of personal rehabilitation. In addition, both the respondent and R claim that the court improperly concluded that (3) it was in R’s best interest to terminate the parental rights of the respondent. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The respondent had been involved with the department since 1995 due to her extensive substance abuse, domestic violence and unaddressed mental health issues. While incarcerated at York Correctional Institution in 2000, the respondent discovered that she was pregnant with R. After her release on bond, in May, 2001, the respondent married J, the father of two children to whom she had given birth previously. She gave birth to R on July 26, 2001. The respondent’s parental rights with respect to the two older children were terminated on September 25, 2001, with her consent. On October 29, 2001, the petitioner, the commissioner of children and families (commissioner), filed a neglect petition with respect to R, which was withdrawn on March 28, 2002.

On August 27 and 28, 2002, the respondent admitted to a department investigator that J had broken her arm and beaten her all over her body. She reported significant incidents of domestic violence during the preceding several months. On August 28, 2002, the commissioner invoked a ninety-six hour administrative hold pursuant to General Statutes § 17a-101g and took R into custody, suspecting drug use in the home and domestic violence between the respondent and J. Two days later, the commissioner filed an ex parte motion for an order of temporary custody and a second neglect petition that alleged that R “was living under conditions and circumstances injurious to his well-being.” The court, Harleston, J., denied the ex parte motion and granted the commissioner a show cause hearing. On December 16, 2002, the parties reached an agreement under which the respondent entered a plea of nolo contendere; the child was adjudicated neglected and placed under an order of protective supervision with the respondent for a period of six months. During the period of protective supervision, the department referred the respondent for evaluations for substance abuse treatment at New Directions of North Central Connecticut (New Directions) and for mental health services at North Central Counseling Services. Neither agency recommended additional treatment for the respondent.

On or around April 11, 2003, the department received notice from the Southington police department that the respondent had been arrested and charged with attempting to steal videotapes from a store and that a child fitting R’s description was present when she was arrested. On April 25,2003, the commissioner again filed a motion for an order of temporary custody because she was unable to locate either the respondent or R. On April 28, 2003, the commissioner moved to have the protective supervision modified to commitment. After the respondent and R were located at a motel in West Springfield, Massachusetts, R again was taken from his mother. On May 2, 2003, the court sustained the order of temporary custody by agreement, and the order of protective supervision was extended to December 16, 2003. The court ordered the respondent to comply with specific steps, which included individual therapy, cooperation with in-home services, submission to substance abuse assessment, successful completion of substance abuse treatment and submission to random drug testing. In addition, it ordered her to keep R’s and her own whereabouts known to the department, to keep all appointments that the department would arrange, to have no further involvement with the criminal justice system and to have no new arrests.

Following the removal, the department discussed with the respondent the possibility of her admitting herself to an inpatient substance abuse treatment program, but she told the department that she could not do so because she needed to work and save money. The department referred her to the Genesis Center for a substance abuse evaluation, during which the respondent admitted to a histoiy of crack cocaine use that at times would cost her $1000 per day. She also reported extensive periods of abstinence and incidents of relapse. During the periods of relapse, multiple larceny charges were brought against her that were a result of her cocaine addiction. The Genesis Center recommended an intensive outpatient treatment program for the respondent because she had exhibited success from lower levels of care in the past. The director of substance abuse services there testified that medical detoxification was not necessary because crack cocaine caused psychological and not physical drug dependence.

The Genesis Center also referred the respondent to the Alcohol and Drug Recovery Center (recovery center), an outpatient substance abuse treatment program, where she was assessed on June 3, 2003. The recovery center consisted of intensive outpatient, relapse prevention and aftercare programs. It was recommended that the respondent participate in the intensive outpatient program, which she successfully completed. On July 23, 2003, she entered the relapse prevention program, which she completed as well. The respondent also received mental health services through anger management and psychotherapy, and her counselor testified that the respondent was insightful during these sessions and that it was not necessary for her to engage in a more intensive form of treatment.

Despite initial success at the recovery center, the respondent was unable to remain abstinent. She tested positive for opiates and cocaine in June and August, 2003, and failed to submit urine screens in August and September, 2003. On September 15, 2003, the recovery center wrote a letter to the respondent, indicating that it was going to discharge her from the program due to her positive urine screens and lack of contact. The recovery center recommended a higher level of treatment for the respondent, namely, an inpatient substance abuse treatment program. Both the recovery center and the department provided the respondent with an extensive list of the telephone numbers of inpatient substance abuse treatment programs, and the recovery center additionally advised her regarding the manner in which she could admit herself into such a program. On September 16,2003, at a case status conference, the respondent indicated to the department that she would call to arrange for inpatient treatment. The respondent failed to call. On February 25 and 26, 2004, the respondent was evaluated by Nancy Randall, a clinical psychologist with East Lyme Psychological Associates. Randall described the respondent as a woman with long-standing substance abuse issues for which she requires significant treatment. Despite having been through a number of programs, the respondent had been unable to maintain long-term recovery. Randall believed that, although her risk for relapse likely was to be high for some time, the respondent was in need of inpatient treatment and long-term aftercare.

The record reveals that the respondent had been arrested in excess of fifty times for crimes of larceny, forgery, harassment and for violation of probation, among other charges. In addition, the respondent failed to keep the department informed of her whereabouts and, despite initial regular attendance at the department’s arranged visits with R, began to miss visits during September and October, 2003. By November, 2003, the respondent ceased visitation without informing the department. After unsuccessful attempts to contact the respondent, the department was informed by the Enfield police department that she had been arrested and charged with shoplifting and was incarcerated. During trial, the respondent was incarcerated for having committed insurance fraud, and her maximum release date was set at June 11, 2008.

R’s biological father, B, was not apprised of R’s existence until the respondent filed a claim for child support in October, 2002. Paternity was established in December, 2002, and B began paying child support in May, 2003. On December 1, 2003, the commissioner filed a petition to terminate the parental rights of B and the respondent, alleging failure to achieve a sufficient degree of personal rehabilitation as to both the respondent and B, as well as abandonment and no ongoing parent-child relationship as to B. R’s paternal aunt, T, was first made aware of R when child support papers were sent to her house in August, 2003. After a discussion with her brother, T attempted to initiate supervised visits with R, which finally began in February, 2004. From the beginning, T, a peer mediation counselor in the public schools, wanted to take R from the custody of the commissioner and bring him to her home, which she shared with her mother and father. On February 9, 2004, the commissioner filed a permanency plan in which termination of parental rights and adoption were recommended. On March 17, 2004, the commissioner withdrew the termination petition as to B, and on March 26,2004, the respondent filed a motion to transfer guardianship from the biological parents to T. On May 12, 2004, R was transferred to T’s home.

The court, Crawford, J., consolidated for trial the respondent’s motion to transfer guardianship with the commissioner’s petition for termination of parental rights. Seven days of testimony to the court commenced on December 14, 2004, and continued for more than four months. The commissioner, the respondent, R and B all were represented by counsel at trial. The respondent and the commissioner each presented numerous witnesses, and the respondent testified on her own behalf. On August 9, 2005, the court issued a thorough memorandum of decision in which it appointed T as guardian for R and terminated the parental rights of the respondent. These appeals followed.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. ... A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under General Statutes § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Jermaine S., 86 Conn. App. 819, 826-27, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).

I

The respondent first claims that the court improperly concluded that the department provided reasonable efforts to reunify her with her child. In addition, she claims that the court improperly found that she was unable or unwilling to benefit from reunification efforts. We disagree.

General Statutes (Rev. to 2003) § 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 (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the corut finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” “Section 17-112 (j) makes clear that the court must make a finding based on clear and convincing evidence that the department made reasonable efforts at reunification or, in the alternative, make a finding that the parent is unwilling or unable to benefit from reunification efforts.” (Emphasis added.) In re Alexander T., 81 Conn. App. 668, 672, 841 A.2d 274, cert. denied, 268 Conn. 924, 848 A.2d 472 (2004). As in In re Alexander T., the court in this case decided both issues.

We first address the respondent’s claim that the department’s efforts at reunification were not reasonable. “It is axiomatic that in seeking to terminate parental rights, the commissioner must prove by clear and convincing evidence that the department made reasonable efforts to reunify the parent and child as required by [General Statutes] § 17a-112 [j] (1). . . . Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible.” (Citation omitted; internal quotation marks omitted.) In re Destiny D., 86 Conn. App. 77, 82, 859 A.2d 873, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004).

A careful review of the record reveals that there was adequate evidence for the court to have concluded that the department made reasonable efforts to reunify the respondent with R. The court’s thorough memorandum of decision delineates the department’s efforts at reunification. It described the efforts made subsequent to R’s first removal on August 28, 2002, including a referral to Advanced Behavioral Health, the respondent’s intake at North Central Counseling Services and an evaluation at New Directions. “On September 25,2002, [the respondent] presented for her intake at North Central Counseling Services. She reported a history of domestic violence, emotional abuse and ongoing verbal abuse. She denied any physical abuse. . . . The evaluator diagnosed cocaine dependence, but found [the respondent] to be in full remission based on the information [she] provided. [The respondent] was not seeking treatment at that time. . . .

“On October 1, 2002, [the respondent] was again evaluated at New Directions. Her hair test and urine screens came back negative. The report noted that she had previously received comprehensive services, including day treatment programming, intensive day treatment, family treatment, couples counseling and individual counseling. New Directions recommended that she become involved in community support such as Narcotics Anonymous or [a] parents’ group. No additional treatment for drug addiction was recommended at this time because of the extensive work completed less than one year earlier.” (Citation omitted.)

After R was taken from the respondent for the second time, the department made another referral to Genesis Center for a substance abuse evaluation and urine drug screen, with which she at first failed to comply. On June 2, 2003, Stephanie Cohen of the recovery center determined that, due to her long history of cocaine dependency and unaddressed extensive trauma, the respondent was in desperate need of a change in her recovery plan. The respondent began an intensive outpatient substance abuse treatment program at the recovery center on June, 5, 2003, and was then referred to a relapse prevention group. Despite consistently having informed the department that she had been attending the program, the respondent now claims that her missed sessions were due to its failure to provide her with transportation. After failing to appear for drug screens in August and September, 2003, she was discharged from the relapse program. The department provided the respondent with a list of sixty-two inpatient substance abuse treatment programs, but she failed to contact any of them.

The respondent claims in her brief, as she did during trial, that the department’s efforts were unreasonable because the department did not provide her with individual counseling, refer her to an inpatient facility and provide her with transportation to the outpatient facility. As the court noted, “Cohen, on June 2, 2003, recommended individual counseling to begin after [the respondent] completed intensive outpatient substance abuse treatment.” (Emphasis added.) Although the respondent did complete an intensive outpatient program on July 16, 2003, the next level of care was relapse prevention, which she “started on July 23, 2003, and attended nine sessions. She then failed to return. She had submitted ten urine screens, two of which were positive for heroin and three for cocaine. She did not maintain abstinence, which was the primary treatment goal, and she was then referred for intensive outpatient treatment.” The respondent’s psychiatrist stated that counseling has no impact on substance abuse, and Randall believed that individual therapy probably would do little to address her underlying personality disorder. Although she initially requested transportation to the outpatient program, the department informed her that transportation would not always be available. As previously noted, the respondent told the department that she had been attending the program consistently.

Although the respondent initially was consistent with her visitation, she began missing visits with R that had been arranged by the department in September and October, 2003. By November, 2003, the respondent ceased visits altogether without informing the department. In all instances, and considering the various programs to which the respondent was referred, the court’s finding by clear and convincing evidence that the department had made the requisite reasonable efforts to reunite her with R was not clearly erroneous. As previously noted: “ [Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Destiny D., supra, 86 Conn. App. 82.

The respondent further claims that the court improperly found that she was unable or unwilling to benefit from reunification efforts. See General Statutes § 17a-112 (j) (1). This claim warrants little additional discussion. The court found that the respondent “has not acknowledged her responsibility for her continued drug use, [has] continued to be involved in criminal activity and continued to relapse. She chose crack cocaine over her child.” The record reveals the respondent’s extensive history with the department and her inability or unwillingness to benefit from the department’s efforts at reunification. In addition to her positive urine screens and missed classes, the respondent has admittedly relapsed and failed to honor many of the specific steps that the court had ordered prior to the petition for the termination of parental rights. She also missed several visits with R that had been arranged by the department. The court’s finding that there was clear and convincing evidence to show that the respondent was unwilling or unable to benefit from reunification efforts was not clearly erroneous.

II

The respondent next claims that the court improperly concluded that the commissioner proved by clear and convincing evidence that she failed to achieve a sufficient degree of personal rehabilitation. We disagree.

General Statutes (Rev. to 2003) § 17a-112 (j) (3) (B) (ii) delineates an alternate means for the court to terminate parental rights. It provides in relevant part that parental rights may be terminated if the child “is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months 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 . . . .”

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999).

The evidence credited by the court supports its findings that the respondent had been referred to a number of services dating from 1994 and that she “continued periodically to test positive for drugs, failed to show for appointments with service providers and failed to follow through on referral for counseling.” It described her “extensive substance abuse history with cocaine as her drug of choice,” as well as her extensive criminal history. The court reasonably relied on the testimony of expert witnesses. Randall testified that the respondent had a personality disorder and that “she has a high likelihood of substance abuse problems, of having conflicts with the law.” She concluded that “if she was to resume care of her son when she came out of prison, I would be concerned about her ability to prove—provide safety for him so that he wouldn’t be either witnessing violence in her home or be subject to violence in the home. So, I—I did not see her as being close to being able to provide care for him.” Randall did not believe that the respondent could achieve rehabilitation sufficiently within a reasonable amount of time for a three year old child.

The court recognized the programs that the respondent successfully completed while incarcerated, but found in its memorandum of decision that “[o]ver the years, [the department] has provided extensive services to [the respondent]. She has a twenty year history of substance abuse, relapse and domestic violence. Her need of extensive treatment, and failure to recognize and address some trauma issues, leads one to conclude that she cannot be restored within a reasonable period of time to a responsible and constructive role in [R’s] life.” Accordingly, we conclude that the court’s finding by clear and convincing evidence that the respondent had failed to achieve a degree of rehabilitation as would encourage the belief that within a reasonable period of time she could assume a responsible position in R’s life was not clearly erroneous.

Ill

The respondent and R both claim that the court improperly concluded, in the dispositional phase of the hearing, that it was in the child’s best interest to terminate the parental rights of the respondent with respect to R. We disagree.

“The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment.” (Internal quotation marks omitted.) In re Shyina B., 58 Conn. App. 159, 167, 752 A.2d 1139 (2000). “In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)].” (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn. App. 835. The court thoroughly considered each of the seven criteria before finding that the respondent’s failure to address her long-term history of substance abuse and domestic violence issues dictated that it would be in R’s best interest to terminate her parental rights.

Both the respondent and R argue that they have a loving relationship and a significant bond. They further argue that no evidence was offered that anyone witnessed the respondent’s acting inappropriately with R. Nevertheless, “[o]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights. See, e.g., In re Tyqwane V., 85 Conn. App. 528, 536, 857 A.2d 963 (2004); In re Ashley S., 61 Conn. App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Quanitra M., 60 Conn. App. 96, 106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).” In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006). Here, there was ample evidence presented regarding the significant bond between R and the respondent. Although the court recognized the evident love that the respondent had for R, it found that the respondent “is not in a position, and [there is] no evidence that she will be in the foreseeable future, to provide for the development, well-being and continuous stability of [R’s] environment.” The court also credited the testimony of various therapists and psychologists to conclude that “[i]t is not expected that she could achieve an appropriate degree of personal rehabilitation within a reasonable period of time.” In light of the foregoing, we conclude that it was not clearly erroneous for the court to have found that it was in the best interest of the child to terminate the parental rights of the respondent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petition was withdrawn as against the respondent father. We refer in this opinion to the respondent mother as the respondent.

       On October 26, 2006, the attorney for the child filed a letter with this court in which she stated: “Pursuant to [Practice Book] § 67-13, counsel for [R] submits this statement that the child does not adopt the briefs of either party. Instead, counsel for the minor child filed an appeal on behalf of [R], alleging that the trial court erred in concluding that teimination of parental rights was in the best interest of the child.” (Emphasis in original.)
      Although our jurisprudence has not had the opportunity to decide whether a child properly may appeal from the termination of parental rights, our Supreme Court recently held that “[i]n cases involving parental rights, the rights of the child coexist and are intertwined with those of the parent. The legal disposition of the parent’s rights with respect to the child necessarily affects and alters the rights of the child with respect to his or her parent.” (Internal quotation marks omitted.) In re Christina M., 280 Conn. 474, 486-87, 908 A.2d 1073 (2006), quoting Wright v. Alexandria Division of Social Services, 16 Va. App. 821, 825, 433 S.E.2d 500 (1993) (child “has a ‘personal stake in the outcome’ of the proceeding to terminate her mother’s parental rights and, therefore, has standing to challenge the propriety of the trial judge’s decision to terminate those rights”), cert. denied, 513 U.S. 1050, 115 S. Ct. 651, 130 L. Ed. 2d 555 (1994).
      In light of our Supreme Court’s determination that the rights of the parents in a termination of parental rights proceeding are “inextricably intertwined with those of their children”; In re Christina M., supra, 280 Conn. 487; we consider the child’s claim independently. Because the claim on appeal also is raised by the respondent mother, however, it is not necessary to decide whether the child is a party to the underlying termination of parental rights case; see Knock v. Knock, 224 Conn. 776, 777 n.1, 621 A.2d 267 (1993); and we consider both claims together in part HI.

       The respondent originally told the department that her pregnancy was the result of a sexual assault and that she did not know the identity of the father. At trial, the respondent testified that she had stated that she had been raped in order to obtain a medical card.

       The respondent had had an intermittent relationship with J for ten years. J is not, however, R’s biological father.

       On August 30, 2002, Michael Clark, the department investigator, issued an affidavit in which he documented information given by the respondent, which stated that she “indicated that [J] has a history of drug use and is presently ‘popping pills’ and selling them on the street. [She] discussed the extensive history of domestic violence between [her] and [J], The investigator noticed [the respondent’s] right wrist was injured and wrapped with an [A]ce bandage. [He] questioned [the respondent] about the injury and she initially refused to answer. Later in the interview . . . she stated [that J] broke her arm and beat her all over. However, she refused to elaborate. She reported at the time [that] her son was in her apartment with her upstairs neighbor .... [The respondent] also indicated, while she was in the parking lot at the . . . police department, [that J] called and threatened to kill her. . . . [The respondent] indicated [that] she was afraid to give a statement [to the police] as she was afraid [J] would harm her.” Clark’s affidavit also documented the respondent’s account of incidents in which J forcefully removed a telephone from her hand and “attempted to hit her with it and smashed it against the wall,” pushed her down stairs, jumped on the hood of her car while R was in it, and often beat her and then told her that he loved her.

       Specifically, the commissioner’s second neglect petition alleged that the parents had “an extensive history” with the department, including substance abuse and unresolved issues of domestic violence, which negatively impacted their ability to provide appropriate care to R; the respondent minimized the impact that domestic violence had on R; and R had specialized needs in that he was an infant and had been exposed to unsafe conditions in the family home.

       The respondent admitted to the department that she had been hiding because she knew the commissioner would remove R from her care.

       The respondent informed the department that she would consider an inpatient facility in the future if R would be placed with her in the program. She was instructed that the department needed “a substantial period of sobriety first before [it] could consider placing [R] with [the respondent] in a residential treatment program.”

       In its memorandum of decision, the court acknowledged the various programs that the respondent successfully completed while incarcerated: “[The respondent] has completed the Marilyn Baker substance abuse program, although it took her longer than usual. She received a certificate of successful completion on February 3, 2005 .... She also became a peer mentor in the Marilyn Baker Program. While incarcerated, she did lose some privileges and was disciplined [on] April 8, 1999, and September 24, 2004.
      “In addition to the Marilyn Baker Program, [the respondent] also received the following: a certificate of achievement for [the] Tier I program (six hours) on April 29, 1999 . . . Certificate of Appreciation in recognition of valuable contributions to the Parenting Skill Program on May 14, 2004 . . . a Certificate of Recognition for completing People Empowering People Program on December 13, 2004 ... a certificate for successful completion of an eight week elective introduction to 12 Steps Recovery, Marilyn Baker . . . Program, Tier IV . . . certificate for successful completion [of] a six week elective on anger management in the Marilyn Baker Program on February 15, 2005 . . . and a letter of completion from the chaplain at York Correctional Institution in an elective course on ‘Spirituality.’ ” The respondent completed these programs under various names.

       The respondent filed motions to clarify or correct the court’s memorandum of decision. Her motions for review were granted by this court, as was the relief requested therein. The trial court appropriately rectified the memorandum of decision and redacted any reference to an exhibit that had not been admitted as a full exhibit at trial.

       General Statutes (Rev. to 2003) § 17a-112 (j) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ... (2) that termination is in the best interest of the child, and (3) that . . . (B) the child . . . (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months 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

       The trial court’s compliance with an order from this court; see footnote 9; documents that “[the respondent] did return the next day, May 6, 2003, and had a drug screen. On May 6, 2003, [the respondent] had also reported that the night before . . . she had one drink mixed with vodka. After a car accident, she had previously been prescribed [Vicodin] for the pain, on and off, and her last use was in October or November, 2002.”

       The court noted that the respondent “tested positive for codeine on June 12, 2003, and June 26, 2003. She failed to produce the prescription or the bottle to the program or [the department].”

       The court also cites two cases in which efforts decidedly less comprehensive than those exercised in the present case were nevertheless deemed reasonable. See In re Alexander T., supra, 81 Conn. App. 673, (“[i]n light of the entire record, the failure to provide the referral, while a lapse, does not make the overall efforts of the department fall below the level of what is reasonable”); In re Ebony H., 68 Conn. App. 342, 350, 789 A.2d 1158 (2002) (“ [notwithstanding the court’s finding that the department’s response to the respondent’s request for assistance in obtaining housing was shameful and unacceptable, our review of the evidence admitted at the trial does not leave us with a definite and firm conviction that the court mistakenly found that the department had made reasonable efforts to reunify the respondent and the child”).

       The court stated: “[The respondent] has had a drug addiction problem for approximately fifteen to twenty years. She has also had a problem with being in relationships where she has been abused, and she has an extensive criminal history which started in 1984. She has been arrested thirty-three times on multiple counts and has at least forty convictions. These range from larceny, false statement, insurance fraud, harassment, narcotics, violations of probation and manslaughter. Her history spans three states, Massachusetts, New Hampshire and Connecticut.”

       Randall testified that there were two issues to consider: “One of them is, is the mother likely to get her act together within a reasonable period of time and ... I think I’ve testified that I don’t believe that she can do that within a reasonable period of time. We were talking about a possibility of three years as a minimum before she would be prepared to . . . work toward reunification. I think that’s too long for a child who’s three years old and who hasn’t been with his mother since he was—I think before two years old—taken out of the home.
      “It . . . would be very disruptive to him emotionally, it would disrupt the attachments that he—I would assume are forming with his family right now that he’s living with, and I can’t see how it would benefit him to wait several years—really, you’re asking him to wait in limbo for several years, not being able to fully attach with his family because of the question of leaving that family at some point.
      “You can’t expect either a child or the people caring for him to form a hundred percent attachment when it’s sort of hanging over their heads that this is temporary. So, it . . . will interfere with that attachment between him and the family that he’s with if the understanding is that he’ll be going back to his mother whenever she is ready to take him.”

       General Statutes § 17a-112 (k) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DOMENICK VALLEJO
    (AC 27271)
    Flynn, C. X, and DiPentima and Hennessy, Js.
    Argued February 2
    officially released July 24, 2007

      Christopher M. Neary, special public defender, for the appellant (defendant).

      Sarah Hanna, special deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Domenick Vallejo, appeals from the judgments of conviction, rendered after a jury trial, of numerous criminal offenses stemming from separate informations. On appeal, the defendant claims that the trial court improperly (1) granted the state’s motion for joinder of two separate cases against him and (2) denied his motion to suppress evidence. We disagree and affirm the judgments of the trial court.

The defendant was charged in connection with two separate incidents. The first occurred on May 8, 2002, although several months prior to that, the victim and the defendant were involved in a road rage incident that culminated in both of them leaving the road to fight. The fight never occurred, however, because police officers drove by the scene, and the defendant departed. No criminal charges resulted. On May 8, 2002, however, the victim encountered the defendant again. This time, as the victim was stopped at the traffic signal at the end of an exit ramp in Danbury, the defendant drove his car along the right side of the victim’s car. The defendant got the victim’s attention and referenced the road rage incident that occurred several weeks prior. It was at this time that the victim saw that the defendant was holding a gun. When the signal turned green, the defendant started shooting as the victim tried to drive away. The defendant fired the gun at least three times. The gunshots hit a front tire, a back tire and the leaf spring of the victim’s car. In connection with these events, the state charged the defendant with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), criminal possession of a firearm in violation of General Statutes § 53a-217 and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.

In the second incident, on November 12, 2002, an off duty Danbury police officer, Kevin Zaloski, saw the defendant, with a friend, inside a Blockbuster video store. Zaloski recognized the defendant and called the police station to verify that there were warrants for his arrest. After the existence of the warrants was verified and additional officers were dispatched to the store, the defendant was arrested. During the search of the defendant incident to his arrest, the police officers found a bag of marijuana, an electronic scale, a large amount of cash in his wallet and a set of car keys. When the police officers informed the defendant’s friend, Patricia Rodriguez, that she was free to leave, she told the officers that her purse was still in the vehicle. Detective James Fisher asked the defendant for permission to retrieve the purse and to search the vehicle. The defendant gave the police officers limited permission to go into the vehicle to retrieve the purse, but he claimed that he could not give them permission to search the vehicle because the vehicle belonged not to him but to a friend. When Fisher and Rodriguez retrieved the purse from the car, Fisher also took the registration from the vehicle to determine the owner of the vehicle. Once Fisher determined that Amy DeLoughy was the registered owner of the vehicle, he attempted to contact her to obtain her consent to search the vehicle. Fisher sent another officer to DeLoughy’s place of employment and to her residence. That officer was unable to locate DeLoughy, but obtained a cellular telephone number and left several messages. After exhausting his attempts to locate DeLoughy, Fisher decided to bring the vehicle back to the police department as he awaited consent to search. Because tow trucks were busy with other vehicles, Fisher directed Officer James Hicks to drive the car to the police department. When Hicks stepped into the vehicle, he stepped onto a gun that was on the driver’s side floor.

The state charged the defendant with criminal possession of a firearm in violation of § 53a-217, possession of a weapon in a motor vehicle in violation of § 29-38, possession of marijuana in violation of General Statutes § 21a-279 (c) and possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b). On May 30, 2003, the charge of possession of a weapon in a motor vehicle was dismissed.

On April 17, 2003, the defendant filed a motion to suppress all tangible evidence that was seized by the police. On April 26, 2003, the state moved to join the cases on the grounds that the defendant was the sole defendant in both cases, the cases were both of relatively short duration and not complex, several witnesses were the same in both cases and any possible prejudice could be rectified by the court with a curative instruction to the jury. The defendant did not object to the motion for joinder, pending a decision on his motion to suppress. The court granted the state’s motion for joinder on May 21, 2003, prior to the start of the juiy trial. The jury trial started on May 29, 2003, at which time the defendant requested the court to decide his motion to suppress. The court declined to make a decision at that point, and the defendant did not object to joinder at that time. The defendant’s motion to suppress was denied by the court during the trial on May 29, 2003, and the defendant did not object to the joinder at that point.

On June 3, 2003, the jury found the defendant guilty of two counts of criminal possession of a firearm in violation of § 53a-217, possession of marijuana in violation of § 2 la-279 (c), possession of a controlled substance with intent to sell in violation of § 21a-277 (b), attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (1), and possession of a weapon in a motor vehicle in violation of § 29-38. This appeal followed.

I

The defendant first claims that the court improperly granted the state’s motion for joinder of all charges against him in a single trial. The state argues that the defendant did not properly preserve, and then abandoned, his claim challenging the corut’s decision to grant the state’s motion for joinder, and, therefore, his claim is unreviewable. The defendant argues that his waiver was conditional on the court’s granting his motion to suppress. We agree with state and, therefore, decline to review this claim.

In declining to review this claim, we reassert the fundamental principle that “if the defendant deems an action of the trial court necessary to the fairness of his trial, he has a responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily a defendant must raise in the trial court the issues that he intends to raise on appeal.” State v. Groomes, 232 Conn. 455, 466, 656 A.2d 646 (1995).

The following additional facts reveal that the defendant did not properly preserve, and then abandoned, his claim challenging the court’s decision to grant the state’s motion for joinder. On May 21, 2003, the court heard the state’s motion for joinder, and the defendant stated that he had no objection to the joinder, pending the court’s decision on his motion to suppress. In addition, the defendant requested that the court rule on his motion to suppress before the start of the trial. At that time, the court granted the motion for joinder subject to its decision on the motion to suppress. On May 29, 2003, the defendant requested that the court rule on the motion to suppress. The court, determining that it was more efficient and appropriate to proceed to the suppression issue during the trial, went forward at that point without a decision on the defendant’s motion to suppress. The defendant did not object to the joinder at the time the joint trial began. Later that day, when the court heard testimony on the motion to suppress outside the presence of the jury and denied the motion, the defendant did not object to the joinder. Furthermore, at no point, before or during the trial, did the defendant file a motion for severance. See State v. Berube, 256 Conn. 742, 747-48, 775 A.2d 966 (2001) (failure to raise issue of severance at trial, with no indication failure not tactical, renders claim unreviewable). Accordingly, we decline to review the defendant’s claim that the court improperly granted the state’s motion for joinder.

II

The defendant also claims that the court improperly denied his motion to suppress. Specifically, he argues that the seizure of the nine millimeter handgun from the vehicle resulted from an illegal search and seizure in violation of the fourth amendment to the United States constitution, and, therefore, the court should have granted the motion to suppress the handgun. The state counters that the defendant does not have standing to challenge the search and seizure of the vehicle, that the handgun was discovered pursuant to the police officer’s caretaker function and that the gun would have inevitably been discovered. We conclude that even if the officer’s initial entry into the vehicle was a violation of the defendant’s fourth amendment right to be free from illegal searches and seizures, because the handgun would have been inevitably discovered, the court properly denied the motion to suppress. Prior to discussing the merits of the defendant’s claims, however, we first address the state’s assertion that the defendant lacks standing to challenge the search of the car and the seizure of the handgun in violation of his fourth amendment rights.

A

The state argues that the defendant did not have standing to assert a fourth amendment violation because he did not have an expectation of privacy in the car in which the handgun was found. We disagree.

As a preliminary matter, we set forth the applicable principles of law that govern our analysis. In order to challenge a search or seizure on fourth amendment grounds, a defendant must show that he has a reasonable expectation of privacy in the place searched. See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Absent such an expectation, the subsequent police action has no constitutional ramifications. State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). “In order to meet this rule of standing . . . a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances. . . . Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing . . . and the trial court’s finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” (Citations omitted; internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92-93, 675 A.2d 866 (1996).

The court’s finding that the defendant had standing was legally and logically consistent with the facts found. The court expressly credited the defendant’s representations that he was in possession of the vehicle, thus establishing an objective expectation of privacy. See State v. Boyd, 57 Conn. App. 176, 187, 749 A.2d 637 (2000) (objective expectation of privacy stems from place where “society is prepared, because of its code and values and its notions of custom and civility, to give deference to a manifested expectation of privacy” [internal quotation marks omitted]), cert. denied, 253 Conn. 912, 754 A.2d 162 (2000). The court also credited the fact that the defendant gave limited permission to the police to enter the vehicle for the purpose of allowing Rodriguez to retrieve her handbag, thus establishing a subjective expectation of privacy. See id. (subjective expectation of privacy rests on finding conduct demonstrating intention to keep things private and from knowing exposure to others’ view). The court also acknowledged the testimony of Fisher that the defendant had stated that the car did not belong to him and that he did not have the right or the power to give permission to search it. The court found, however, that the defendant was “talking about having ownership of the car, but he doesn’t have to own the car to have a subjective expectation of privacy.” The court, with the full testimony before it, determined that the defendant had a subjective expectation of privacy as well as an objective expectation of privacy and, accordingly, held that he did have standing to invoke his fourth amendment rights. Because we agree with the court’s finding that there was a reasonable expectation of privacy and, therefore, that the defendant had standing, we review the defendant’s fourth amendment claims.

B

The defendant claims that the court improperly denied his motion to suppress because the warrantless search of the vehicle of which he was in possession was unreasonable. Specifically, the defendant argues that the police officers found the handgun when they illegally entered the vehicle, after he had been removed from the scene, on the pretext of securing the vehicle, pending contact with the registered owner. The state argues that even if the police officer’s initial entrance into the vehicle was unreasonable, the handgun inevitably would have been discovered through a consent search or through the inventory procedures of the police department.

“As an initial matter, we note that [o]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 514, 903 A.2d 169 (2006).

It is a basic principle of constitutional law that “[t]he fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents. A warrantless search and seizure is per se unreasonable, subject to a few well-defined exceptions.” (Internal quotation marks omitted.) State v. Hedge, 59 Conn. App. 272, 276-77, 756 A.2d 319 (2000). None of the recognized exceptions to the warrant requirement apply in this case.

The court found the following additional facts in deciding the defendant’s motion to suppress. The defendant was placed under arrest on November 12, 2002, at a Blockbuster video store in Danbury. The police searched the defendant, incident to arrest, and found keys to a car, drugs and drug paraphernalia. Although the defendant denied driving a vehicle to Blockbuster, at some point, while still on the scene, he gave Fisher limited permission to allow Rodriguez, who was with the defendant, to enter the vehicle to retrieve a handbag. It was determined that the vehicle was owned by DeLoughy. The defendant was removed from the scene. Meanwhile, the police tried to contact DeLoughy to determine what to do with the car and to try to obtain consent from her to search it. The police determined that until they were able to locate DeLoughy, they needed to secure the vehicle and that they would do so by bringing the car to the evidence bam at the police department. Unable to find a truck to tow the vehicle, Hicks entered the car to drive it to the bam. Fisher testified at trial that it is routine practice to drive the vehicle to the police department while awaiting consent or a warrant. He also testified that it would have been normal procedure to conduct an inventory search upon securing the vehicle in the evidence bam, even absent consent or a warrant. Despite this testimony, the court, finding that there was no legal basis for Hicks to have entered the vehicle at that time, applied the inevitable discovery mle. The court reasoned that “the police were going to find that weapon in any event because according to their standard procedures, the vehicle was going to be taken back to the evidence bam and inventoried.” Accordingly, the court went on to deny the motion to suppress.

We agree with the court that even if the officer’s initial entry into the vehicle was a violation of the defendant’s fourth amendment right to be free from illegal searches and seizures, the handgun would have been inevitably discovered. We therefore conclude that the court properly denied the motion to suppress.

“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. ... To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 280 n.29, 764 A.2d 1251 (2001); see Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). The inevitable discovery rule applies in a situation in which, as here, the police would have legally discovered the evidence eventually. Here, the police would have discovered the gun through the inventory conducted in accordance with the police department policy.

It is clear that the police would have discovered the gun on the driver’s side floor of the car after it was brought to police headquarters because of the department’s inventory procedures. An inventory search is “a well-defined exception to the warrant requirement. ... In the performance of their community caretaking functions, the police are frequently obliged to take automobiles into their custody. ... A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person.” (Citations omitted; internal quotation marks omitted.) State v. Gasparro, 194 Conn. 96, 107, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985).

The police were actively trying to contact the registered owner, DeLoughy, at the time that Hicks entered the vehicle. The police contacted DeLoughy’s residence and her place of employment, and they left several messages for her on her voicemail. In addition, the car was parked in a private parking lot where there were several different businesses and much traffic in and out. Furthermore, the police, having arrested the defendant, created the situation in which the car would be parked in the lot for hours or even potentially overnight. It was all of these circumstances that entered into the decision on the part of the police to secure the vehicle while continuing to attempt to contact the owner of the vehicle. Bringing a vehicle to a secure location while waiting for consent was in accordance with normal department procedure. Also part of departmental procedure was inventorying any vehicle of which the police were in possession in order to protect the police from claims of loss or damage to property. Even if the police had a truck tow the vehicle to the evidence bam, the handgun would have been found once the vehicle was searched pursuant to departmental policy.

The rationale behind the inevitable discovery rule is to prevent the police from being in a worse situation than they would have been had the initial illegality not occurred. See State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160 (“[fjaimess can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place” [internal quotation marks omitted]), cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). The police would have found the handgun when they inventoried the vehicle once they had towed the car to the evidence bam. Therefore, the court properly denied the motion to suppress the gun as evidence.

The judgments are affirmed.

In this opinion the other judges concurred.

       Specifically, the defendant was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, two counts of criminal possession of a firearm in violation of General Statutes § 53a-217, possession of marijuana in violation of General Statutes § 2 la-279 (c) and possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b).

       We are unpersuaded by the defendant’s attempt to bring this into the ambit of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The decision to grant or to deny joinder is within the sound discretion of the trial court and will not be disturbed on appeal absent manifest abuse. State v. Swain, 101 Conn. App. 253, 259, 921 A.2d 712 (2007). Furthermore, the joinder of cases is favored because of efficiency. “[JJoinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testily only once.” (Internal quotation marks omitted.) Id., 258. Thus, under the circumstances of the present case, in which the defendant did not object to joinder or move for severance, we can see nothing of constitutional magnitude about his claim that the court improperly granted the state’s motion for joinder.
      The defendant also claims that he should prevail under the plain error doctrine. See Practice Book § 60-5. “ [P]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 77, 644 A.2d 887 (1994). We conclude that in this case, the court did not commit plain error by granting the state’s motion for joinder. See Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 251, 520 A.2d 1008 (1987).

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The fourth amendment has been made applicable to the states via the fourteenth amendment. State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

       We analyze the defendant’s claim under the federal constitution because he neither briefed a state constitutional claim nor provided independent analysis under a particular provision of the state constitution. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992) (defendant must provide independent analysis under particular provision of state constitution); see also State v. Pierre, 277 Conn. 42, 74 n.12, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).

       We note that during the hearing on the defendant’s motion to suppress the handgun, the court found that the handgun would inevitably have been discovered through the police department procedures for inventory of impounded vehicles and did not make any findings of fact or conclusions of law regarding the consent of the registered owner. In fact, the court specifically refused to take the consent into consideration. Because we affirm the court’s conclusion, we decline to review the alternate grounds for affirmance proffered by the state.

       There are four recognized situations in which a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States or state constitutions. They are that the search was (1) made incident to a lawful arrest; (2) conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime; (3) based on consent; or (4) conducted pursuant to an inventory of the car’s contents incident to impounding the car. State v. Reddick, 189 Conn. 461, 467, 456 A.2d 1191 (1983).


author: SCHALLER, J.

text:
    LAURI J. LISTENES v. ALAN LISTENES, JR.
    (AC 27383)
    Flynn, C. J., and Sehaller and DiPentima, Js.
    Argued February 13
    officially released July 24, 2007

      Hugh D. Hughes, with whom, on the brief, was William F. Gallagher, for the appellant (defendant).

      Robert M. Fleischer, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Alan Listenes, Jr., appeals from the postdissolution judgment of the trial court awarding a dependency exemption for income tax purposes to the plaintiff, Lauri J. Listenes, for certain years. On appeal, the defendant claims that the court improperly (1) concluded that the issue of the tax exemption was not barred by res judicata and (2) found that he was in arrears with respect to his court-ordered child support. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the defendant’s appeal. The parties were married on October 21, 1988, and have one minor child. On September 16, 1997, the court dissolved the marriage and awarded custody of the minor child to the plaintiff. The defendant was ordered to pay alimony, for a period of three years, and child support in the amount of $95 per week. The court further found the defendant in arrears in the amount of $1640 with respect to the prior pendente lite orders and ordered that he pay $20 per week until the debt was repaid. Finally, the court entered the following order: “The defendant shall be entitled to claim the minor child as a dependent for income tax purposes provided he is current with the child support payments as of December 31. This provision shall be modifiable.”

Commencing on November 20,1997, the plaintiff filed many motions for contempt, alleging that the defendant had failed to pay alimony, child support, the arrearage or medical expenses of the child. On September 28, 1998, the court accepted the parties’ written agreement that terminated the defendant’s alimony obligation and changed the terms of the child support obligation. The defendant agreed to pay the plaintiff $106 per week, plus 25 percent of his net overtime pay and any subsequent pay increases, and 20 percent of any “side income” that he received. They further agreed that the defendant was in arrears with respect to the child’s medical expenses, and alimony and child support.

After the agreement, the plaintiff continued to file motions for contempt, again alleging that the defendant had failed to pay his support obligation. In a motion dated April 12,2001, the plaintiff claimed that the defendant improperly had claimed the minor child as a dependent for income tax purposes. On April 30, 2001, the parties reached a second agreement. Child support was increased to $171 per week, and the defendant acknowledged an arrearage of $1040 for 2000 and $506.50 for 2001.

Starting in January, 2002, the plaintiff filed several motions for contempt, alleging that the defendant failed to pay the proper amount of child support and that he improperly had claimed the minor child as a dependent. On August 13, 2002, the court awarded the dependency exemption to the plaintiff for 2002 and, once again, found the defendant to be in arrears.

On November 17, 2005, the plaintiff filed a motion for modification, seeking an increase in child support. On the same date, the plaintiff also filed a motion for contempt, claiming simply that “more money is owe[d].” On December 19, 2005, the parties entered into another written agreement. The defendant agreed to pay the plaintiff $142 per week, and, in order to settle the dispute regarding arrearages, the sum of $954.55 in four equal payments. The parties each expressly reseived the right to claim the child as a dependent for federal income tax purposes with respect to the 2000, 2001, 2003 and 2004 tax years. Additionally, the defendant agreed that commencing with the 2005 tax year, the plaintiff and her current spouse were entitled to claim the child as a dependent for tax purposes. Finally, the agreement specified that the defendant no longer was obligated to pay the plaintiff 25 percent of his overtime pay or 20 percent of his “side income.”

On January 3, 2006, the court held an evidentiary hearing with respect to the conflicting claims of the dependency exemption for the 2000, 2001, 2003 and 2004 tax years and concerning whether the defendant was in contempt for claiming the minor child as a dependent during those years. On January 5, 2006, the court issued its memorandum of decision. The court determined that the defendant had been found to be in arrears in 2000 and 2001 and therefore was not eligible to take the tax exemption for those years. The court further found that on the basis of the defendant’s testimony that he was in arrears since 2003, he was not eligible to take the tax exemption for 2003 and 2004. Accordingly, the court awarded the tax exemption for the minor child for the tax years 2000, 2001, 2003 and 2004 to the plaintiff. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly concluded that the issue of the tax exemption was not barred by res judicata. Specifically, he argues that the plaintiff, on multiple prior occasions, had asserted her claim regarding the tax dependency exemption for the 2000 and 2001 tax years. He argues that because the court expressly awarded the plaintiff only the 2002 exemption, her claims relating to 2000 and 2001 were extinguished. We are not persuaded.

As a preliminary matter, we identify the applicable legal principles and standard of review that guide our resolution of the defendant’s claim. “The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties ... in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. . . . The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.” (Internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 96 Conn. App. 326, 332, 901 A.2d 49 (2006); see also LaSalla v. Doctor’s Associates, Inc., 278 Conn. 578, 589-90, 898 A.2d 803 (2006). “The issue of whether the doctrine of res judicata is applicable to the facts of the present case is a question of law. Accordingly, our review is plenary.” Gaynor v. Payne, 261 Conn. 585, 595, 804 A.2d 170 (2002); Jewish Home for the Elderly of Fairfield County, Inc. v. Cantor, supra, 333.

The following additional facts are necessary. On April 12, 2001, the plaintiff filed a motion for contempt, alleging that the defendant had disobeyed a prior court order by failing to follow the parties’ visitation schedule, failing to pay her 25 percent of his overtime and 20 percent of his side work income and claiming the minor child as a dependent for tax purposes despite being in arrears. The parties subsequently entered into an agreement that stated, inter alia, that the defendant “owes arrearages of [$]506.50 (2001) and [$] 1040.00 (2000) . . . .” The issue of the exemption was not mentioned in this order.

On January 14,2002, the plaintiff filed another motion for contempt, again alleging that the defendant had not followed the visitation schedule, had failed to pay her 25 percent of his net overtime and 20 percent of his side work income and had claimed the minor child as a dependent despite consistently being in arrears. The court held a hearing on this motion on February 4, 2002. The court found that the defendant was in arrears but not in contempt.

The plaintiff filed similar motions for contempt on March 28, April 29 and July 3, 2002. On August 13, 2002, the court held a hearing on the July 3,2002 motion and awarded the 2002 exemption to the plaintiff. The issues of the 2000 and 2001 exemptions were not addressed in the court’s order.

We note that “[a] judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest. . . . Thus, res judicata may operate to preclude a claim decided in a previous proceeding within the same case. . . . [F]or purposes of res judicata, a judgment will ordinarily be considered final if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court, short of any steps by way of execution or enforcement that may be consequent upon the particular kind of adjudication.” (Citations omitted; internal quotation marks omitted.) Honan v. Dimyan, 63 Conn. App. 702, 707-708, 778 A.2d 989, cert. denied, 258 Conn. 942, 786 A.2d 430 (2001); see also CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 397, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999) (en banc). Put another way, “[application of the doctrine of res judicata requires that there be a previous judgment on the merits.” Cayer Enterprises, Inc. v. DiMasi, 84 Conn. App. 190, 193, 852 A.2d 758 (2004).

The defendant asks us to conclude that the court decided the issue of the 2000 and 2001 tax exemptions adversely to the plaintiff. Specifically, he argues that the April 30, 2001 agreement resolved all of the issues set forth in the plaintiffs April 12, 2001 motion for contempt. Because the court did not expressly award the 2000 exemption to the plaintiff at that time, or in any subsequent order or agreement, the defendant maintains that by operation of res judicata, the plaintiffs claims for the 2000 and 2001 exemptions were extinguished.

We do not agree with the defendant’s interpretation of the court’s orders. The court did not decide the issue of which party was entitled to the exemption for the 2000 and 2001 tax years. As our Supreme Court has noted, “[application of the doctrine of res judicata requires that there be a previous judgment on the merits. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).” Cayer Enterprises, Inc. v. DiMasi, supra, 84 Conn. App. 193; see also Zieger v. Village Brook Plaza Ltd. Partnership, 224 Conn. 543, 545, 620 A.2d 109 (1993) (“It is axiomatic, however, that the application of the doctrine of res judicata requires the existence of a validfinal judgment. See, e.g., Beccia v. Waterbury, 192 Conn. 127, 132, 470 A.2d 1202 (1984); Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980).” [Emphasis in original.]). The court never issued a valid final judgment for purposes of res judicata with respect to the tax exemption issue for 2000 and 2001. When no such judgment has been rendered, a claim is not barred by res judicata. See generally Rathblott v. Rathblott, 79 Conn. App. 812, 822, 832 A.2d 90 (2003).

In the present case, the plaintiff requested, by way of several motions for contempt, that the court determine which party was entitled to the tax exemption for 2000 and 2001. This issue, therefore, remained pending before the court. The court did not resolve this issue until it issued its memorandum of decision of January 5, 2006. We disagree, therefore, with the defendant’s contention regarding the application of the doctrine of res judicata. We are mindful that “[t]he doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. . . . We review the doctrine of res judicata to emphasize that its purposes must inform the decision to foreclose future litigation. . . . [T]he scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 296, 794 A.2d 1029 (2002). We conclude that the plaintiffs claims regarding the 2000 and 2001 tax exemption were not barred by res judicata.

II

The defendant next claims that the court improperly found that he was in arrears with respect to his court-ordered child support. Specifically, the defendant argues that the court improperly relied on his testimony that he was in arrears during 2003 and 2004 in finding that the plaintiff was entitled to the tax exemption for those years. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant testified at the January 3, 2006 hearing. During cross-examination, he was asked: “[D]id you owe [the plaintiff] money for 2003 and 2004?” The defendant responded: “According to the new guidelines, yes.” The defendant further indicated that as of the date of the hearing, he was still making payments on that arrearage. The defendant also testified that because he had misunderstood the order, he had not disobeyed the court’s orders intentionally. On the basis of this testimony, the court found that the defendant was in arrears as of December 31, 2003, and as of December 31, 2004.

The question of whether the defendant was in arrears presents a question of fact. See, e.g., Milot v. Milot, 174 Conn. 3, 4, 381 A.2d 528 (1977); Rosato v. Rosato, 77 Conn. App. 9, 13, 822 A.2d 974 (2003). “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 667-68, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). Moreover, “[i]t is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) Richards v. Richards, 82 Conn. App. 372, 376, 844 A.2d 889 (2004); see also Giulietti v. Giulietti, 65 Conn. App. 813, 878, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

In the present case, the defendant testified that he was in arrears at the end of 2003 and 2004. The court, as the trier of fact, properly exercised its discretion to believe that testimony. Given our limited standard of review, we cannot conclude that this finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that in our review of the record, we also have discovered at least four motions for contempt filed by the plaintiff prior to the dissolution of the marriage, alleging that the defendant had failed to pay alimony and child support.

       Both parties had claimed the child as a dependent on their respective, separately filed tax returns for 2000, 2001, 2003 and 2004.

       We note that the court’s January 5, 2006 memorandum of decision did not address the defendant’s claim of res judicata. On January 25, 2006, the defendant filed a motion to reargue and requested that the court reconsider his claim of res judicata. The court denied that motion to reargue.
      In his appellate brief, the defendant concedes that he did not seek an articulation, pursuant to Practice Book § 66-5, of the court’s order. The defendant, citing to Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 743-46, 826 A.2d 170 (2003), argues that an articulation is not essential to appellate review of a res judicata argument when the facts are not in dispute. We agree that, in the present case, the record is adequate for our review despite the trial court’s silence with respect to the issue of res judicata.

       During the hearing, counsel for the defendant stated: “In the memorandum of decision, which is dated September 15, 1997, on page six, under miscellaneous, number two, it states that the defendant shall be entitled to claim the minor child as a dependent for income tax purposes, provided he is current with the child support payments as of December 31. This provision shall be modifiable. To my knowledge, there isn’t any other order in the file. And quite frankly . . . when I read this provision, it didn’t seem to be entirely clear to me, whether it meant as of December 31, 1997, the year of the decree, or whether it meant any subsequent year thereafter; if he was in arrearage as of December 31. So, that might be a motion for a clarification on a later day, but I would just like to know if [the plaintiff] is pursuing that matter today.” The plaintiff responded: “That’s not what I’m here for.”
      To the extent that the defendant suggests that this colloquy amounts to a waiver by the plaintiff of her claim regarding the tax exemption, and thereby extinguished it by the application of res judicata to a claim that could have been brought, we are not persuaded. “Waiver involves an intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. . . . Waiver may be inferred from the circumstances if it is reasonable so to do. . . . Whether conduct constitutes a waiver is a question of fact. . . . The issue of waiver is a question of fact, dependent on all of the surrounding circumstances and the testimony of the parties.” (Citation omitted; internal quotation marks omitted.) Roy v. Metropolitan Property & Casualty Ins. Co., 98 Conn. App. 528, 532, 909 A.2d 980 (2006).
      There was no finding of waiver by the trial court in the present case. It is axiomatic that appellate courts do not engage in fact-finding. See State v. Nowell, 262 Conn. 686, 695-96, 817 A.2d 76 (2003); Pulaski v. Ledwith, 5 Conn. App. 629, 631, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986).

       This motion resulted in a stipulated agreement approved by the court on April 8, 2002. This agreement did not mention the issue of the dependency exemption.

       This motion was marked off by agreement of the parties to provide the pro se plaintiff with an opportunity to obtain counsel.