author: Schaller, J.

text:
    Frederick J. Staehle v. Michael’s Garage, Inc., et al.
    (12833)
    Landau, Schaller and Spear, Js.
    Argued April 4
    decision released August 16, 1994

      Gerald A. Joseloff, with whom, on the brief, was Richard W. Gifford, for the appellant (plaintiff).

      Jack Michael, pro se, the appellee (defendant), filed a brief.
   Schaller, J.

The plaintiff, Frederick J. Staehle, appeals from the judgment of the trial court awarding him compensatory damages, punitive damages and attorney’s fees on counts of conversion and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff claims that the trial court improperly (1) failed to allow attorney’s fees for the department of motor vehicles (DMV) administrative hearing, (2) awarded only partial attorney’s fees for the CUTPA action, and (3) failed to award sufficient punitive damages. We affirm the judgment of the trial court.

The trial court found the following facts. On or about January 22, 1990, the defendants, Michael’s Garage, Inc., and Jack Michael, president and treasurer of Michael’s Garage, Inc., through their agents, servants or employees, towed the plaintiff’s 1972 Chevrolet pickup truck from a parking lot of the Chestnut Hill apartment complex in Middletown to the defendants’ junkyard located at 314 Turkey Hill Road in Haddam. On March 3,1990, after repeated attempts to have the vehicle returned, the plaintiff filed a complaint against the defendants with the DMV. An administrative hearing was held by the DMV to determine whether the defendants had violated specific licensing provisions under General Statutes §§ 14-67m (a) and (b), and 14-67n. The plaintiff sought either party or intervenor status, pursuant to General Statutes § 4-177a. The request was denied as untimely, but the DMV hearing officer indicated that the DMV hearing would not affect the plaintiffs right to bring a civil suit.

The DMV hearing officer concluded that the defendants had violated General Statutes §§ 14-150 (g), 14-67m (a) and (b), and 14-67n. Pursuant to the DMV’s decision, the defendants were required to make restitution to the plaintiff in the amount of $600.

The plaintiff subsequently brought a civil action, alleging conversion and violation of CUTPA. The trial court concluded that the defendants’ actions constituted both a conversion and a violation of CUTPA and awarded damages of $2025 plus interest in the amount of $708.55 on the conversion count, and $2025 in punitive damages and $11,250 in attorney’s fees on the CUTPA count. The plaintiff appeals from this judgment.

I

The plaintiff first claims that the trial court improperly excluded the work performed by the plaintiff’s attorney for the DMV proceeding in the calculation of attorney’s fees under General Statutes § 42-110g (d). We do not agree.

In deciding this issue, we look first to the language of General Statutes § 42-110g (d). In analyzing the statutory language, we employ the standard rules of statutory construction. “To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. ... If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, we will seek guidance from ‘extrinsic aids,’ e.g., the legislative history.” (Citations omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

According to the statute, “the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney . . . .” (Emphasis added.) General Statutes § 42-110g (d). The use of the word “may” indicates that the statute does not provide a mandatory award of fees to the plaintiff; rather, the court has discretion to award attorney’s fees. The language of the statute is clear and unambiguous; the awarding of attorney’s fees is within the discretion of the trial court.

The cases interpreting the attorney’s fees provision of CUTPA also indicate that the awarding of attorney’s fees is within the discretion of the trial court. In Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987), our Supreme Court held that “[ajwarding . . . attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Citations omitted.) See also Woronecki v. Trappe, 228 Conn. 574, 580-81 n.7, 637 A.2d 783 (1994); Chrysler Corp. v. Maiocco, 209 Conn. 579, 590, 552 A.2d 1207 (1989); Ven Nguyen v. DaSilva, 10 Conn. App. 527, 530, 523 A.2d 1369 (1987); Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 32-33, 521 A.2d 212 (1987).

The trial court concluded that the defendants’ actions with regard to the plaintiff were in violation of CUTPA. Pursuant to § 42-110g (d), the trial court awarded attorney’s fees to the plaintiff in the amount of $11,225, noting that this award did not include the $7626.72 in attorney’s fees related to the DMV proceeding. We conclude that the trial court reasonably could have determined that the legal expenses incurred in the DMV proceeding should be excluded from a calculation of attorney’s fees under CUTPA. “CUTPA . . . allow[s] attorney’s fees only subject to the sound discretion of the court”; Chrysler Corp. v. Maiocco, supra, 209 Conn. 590; and this court will not upset the trial court’s judgment without a showing of manifest abuse of discretion or injustice. There being no indication of either in this case, we conclude that it was within the discretion of the trial court to exclude attorney’s fees related to the DMY proceeding in its award of attorney’s fees under CUTPA.

II

The plaintiff next claims that the trial court improperly awarded only partial attorney’s fees for the CUTPA action. We do not agree.

As noted previously, “[ajwarding . . . attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Citations omitted.) Gargano v. Heyman, supra, 203 Conn. 622. The statute contains no standard by which a court is to award attorney’s fees, thus leaving it to the sole discretion of the trial court to determine if attorney’s fees should be awarded and the amount of such an award.

In St. Margaret’s-McTernan School, Inc. v. Thompson, 31 Conn. App. 594, 627 A.2d 449 (1993), we concluded that an award of $500 in attorney’s fees was improper, and directed to the trial court to determine reasonable attorney’s fees. The trial court in St. Margaret’s made no finding that the fees awarded were either reasonable or unreasonable. This case is distinguishable from St. Margaret’s because, here, the trial court implicitly found that the amount of fees awarded was reasonable. In its memorandum of decision, the trial court adopted the reasonableness standard contained in General Statutes § 42-110g (d) and thus impliedly found that the attorney’s fees awarded were reasonable. This is further demonstrated through the trial court’s citation to Barco Auto Leasing Corp. v. House, 202 Conn. 106, 520 A.2d 162 (1987), for the proposition that a court may award reasonable attorney’s fees. We conclude that the trial court did not abuse its discretion in awarding less than the full amount of attorney’s fees claimed, on the basis of that court’s implied finding that the fees awarded were reasonable.

Ill

The plaintiffs final claim is that the trial court abused its discretion in failing to award sufficient punitive damages. We do not agree.

We first analyze the language of the statute. General Statutes § 42-1 lOg (a) provides that “[t]he court may, in its discretion, award punitive damages . . . as it deems necessary or proper.” (Emphasis added.) The language is clear and unambiguous; the awarding of punitive damages is within the discretion of the trial court.

The standard for awarding punitive damages under CUTPA was established in Gargano v. Heyman, supra, 203 Conn. 622, where our Supreme Court held that punitive damages are available when there is evidence of “a reckless indifference to the rights of others or an intentional and wanton violation of those rights. ... In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence. . . .” (Citations omitted; internal quotation marks omitted.) Although the statute provides no guidance as to a method for determining the amount of a punitive damages award, several methods have gained acceptance by the courts.

The method used in this case for determining punitive damages was to award an amount equal to the plaintiffs actual damages. This is a recognized method for determining punitive damages under CUTPA. See Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 43, 634 A.2d 870 (1993); Lembo v. Schlesinger, 15 Conn. App. 150, 153, 543 A.2d 780 (1988). It is not an abuse of discretion to award punitive damages based on a multiple of actual damages. See, e.g., Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62, 73 (D. Conn. 1982), aff'd, 723 F.2d 895 (2d Cir. 1983); Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 234-38, 477 A.2d 988 (1984); Lembo v. Schlesinger, supra, 155-56. We conclude, therefore, that the trial court did not abuse its discretion in awarding punitive damages in an amount equal to actual damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       General Statutes § 14-67m (a) provides in pertinent part: “Each motor vehicle junk yard licensee shall maintain a suitable office and keep accurate records of all motor vehicles or major component parts thereof received, dismantled or sold. Such records, vehicles and parts shall be available for inspection during regular business hours by one or more representatives of the department of motor vehicles, the division of state police within the department of public safety or any organized local police department. . . .”

       General Statutes § 14-67m (b) provides in pertinent part: “No motor vehicle junk yard licensee may receive a motor vehicle unless the licensee receives the vehicle’s certificate of title, if the vehicle is required to have title, or a copy of the vehicle’s certificate of title made by an insurance company pursuant to section 14-16c, at the time of receipt of the vehicle. . . .”

       General Statutes § 14-67n provides: “No junk yard licensee shall rent or allow or cause to be rented, or operate or allow or cause to be operated for hire, or use or allow or cause to be used for the purpose of conveying passengers or merchandise or freight for hire, any motor vehicle registered under a general distinguishing number or mark. Such plates as are issued to a junk yard licensee may be used in connection with his business for the purpose of towing vehicles to his place of business, for use on the vehicle being towed, for use on commercial vehicles carrying motor vehicles or parts thereof to his place of business for the purpose of dismantling, and for carrying parts of motor vehicles or motor vehicle scrap from such place of business to the place of sale or disposition. The licensee may use such plates for his personal use on vehicles owned by him.”

       General Statutes § 14-150 (g) provides in pertinent part: “The owner or keeper of any garage or other place where such motor vehicle is stored shall have a lien upon the same for his storage charges. Unless title has already vested in the municipality pursuant to subsection (d), if the current market value of such motor vehicle as determined in good faith by such owner or keeper does not exceed five hundred dollars and such motor vehicle has been stored for a period of not less than fifteen days, such owner or keeper may, unless an application filed by the owner pursuant to subsection (d) of this section is pending and the owner of such motor vehicle has notified such owner or keeper that such application for hearing has been filed, sell the same for storage and towing charges owed thereon, provided a notice of intent to sell shall be sent to the commissioner and the owner of such motor vehicle, if known, five days before the sale of such vehicle. ...”

       The amount was set at $600 on the basis of the valuation report of Inspector Richard Santoro of the dealers and repairers division of the DMV. This valuation method does not take into consideration the contents of the truck, including three outboard motors and various tools allegedly in the truck’s bed when towed.
      In the CUTPA action, the trial court valued the items as follows: three outboard motors at $1150, vehicle’s cap at $500, four outboard motor gas tanks at $125, tools and a toolbox at $150 and two snow tires at $100. The total fair market value was $2025.

       General Statutes § 42-110g (d) provides: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys’ fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.”

       Although the plain language of the statute is unambiguous, and we need not examine the legislative history, we note that the legislative history plainly supports our conclusion that the legislative intent was that the award of attorney’s fees would be in the discretion of the trial court. CUTPA was enacted in 1973. The purpose of the statute was to provide a remedy for consumers who had been victimized by unfair or deceptive trade practices, through both private and public enforcement. R. Langer & D. Ormstedt, “The Connecticut Unfair Trade Practices Act,” 54 Conn. B. J. 388, 389-90 (1980). In 1976, an amendment to the statute was made concerning attorney’s fees. Prior to the amendment, the court could award attorney’s fees to either party, plaintiff or defendant. The 1976 amendment allowed for the awarding of attorney’s fees to the plaintiff only.
      During the legislative debate of the 1976 amendment, Representative Alan H. Nevas commented that “[w]hen the initial legislation was enacted, the language provided that if there was litigation, the court, at the end of that litigation, could make an award of costs and attorney’s fees to either party, depending on the discretion of the court and in its judgment as to which party should be entitled to such an award.” (Emphasis added.) 19 H.R. Proc., Pt. 6, 1976 Sess., p. 2189. Responding to a complaint that the new amendment would be unfairly harsh to businessmen, Senator Louis S. Ciccarello observed, “I think it’s fair and I think it should also be pointed out that reasonable attorney’s fees are granted only upon discretion of the court, so therefore, a plaintiff may not be able to receive any fees whatsoever. ” (Emphasis added.) 19 S. Proc., Pt. 6, 1976 Sess., p. 2278. These comments strongly indicate that the intent behind § 42-110g (d) was for an award of attorney’s fees to be determined at the discretion of the trial court.

       The plaintiff requested attorney’s fees of $28,468.53. The trial court awarded attorney’s fees of $11,250.

       Another distinguishing factor is that the St. Margaret’s case involved a contract that “expressly allowed for ‘all attorney’s fees and reasonable costs of collection for any outstanding amounts due under this contract.’ ” St. Margaret’s-McTernan School, Inc. v. Thompson, supra, 31 Conn. App. 598-99. This provision of the contract was quoted by this court in its decision to vacate the trial court’s award of attorney’s fees, and was an additional factor in the decision to vacate.

       General Statutes § 42-110g (a) provides: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”

        Gargano also dictates that the awarding of punitive damages under CUTPA is discretionary. Our Supreme Court found “[ajwarding punitive damages . . . under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Citations omitted; emphasis added.) Gargano v. Reyman, supra, 203 Conn. 622.

       The trial court awarded $2025 in actual damages, and used that amount as the award of punitive damages as well.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Eugene Wrinn v. State of Connecticut et al.
    (12415)
    Landau, Heiman and Freedman, Js.
    Argued March 31
    decision released August 16, 1994

      Karen L. Murdock, with whom were Wesley W. Horton and, on the brief, Michael Taylor, certified legal intern, for the appellant (plaintiff).

      Philip F. von Kuhn, for the appellee (named defendant).
   Landau, J.

In this negligence action, the plaintiff, Eugene Wrinn, appeals from the judgment of the trial court, rendered after a jury verdict, for the defendant state of Connecticut. The plaintiff claims that the trial court improperly (1) denied the plaintiffs motion to set aside the verdict, (2) refused to charge the jury on the applicability of General Statutes § 14-240, and (3) excluded questions at voir dire concerning prospective jurors’ affiliations with insurance companies.

The jury reasonably could have found the following facts. On May 20, 1986, the plaintiff had been driving south on the Connecticut Turnpike, Interstate 95. He exited the highway in Norwalk at exit sixteen and stopped his vehicle behind another vehicle at a traffic signal at the end of the exit ramp. The weather was rainy and misty, and the road was wet. Vallerie Tyson, an employee of the state department of mental retardation, was operating a motor vehicle owned by the state in the ordinary course of her employment. Tyson entered the turnpike at exit fifteen and proceeded at a speed no greater than forty-five miles per hour between exits fifteen and sixteen. At exit sixteen, Tyson turned onto the exit ramp, and saw two vehicles ahead of her stopped at the traffic signal at the end of the ramp. As she slowed her vehicle it began to slide. Although Tyson attempted to avoid a collision, the vehicle collided with the rear of the plaintiff’s vehiele. The tires on Tyson’s vehicle were in good condition, the brakes were in good working order, and the vehicle had not skidded at any time prior to the collision.

I

The plaintiff first claims that the trial court improperly denied his motion to set aside the verdict based on his claim that the verdict was not supported by sufficient evidence. Specifically, he claims that the jury could not have concluded reasonably that (1) Tyson’s negligence did not cause the accident, and (2) he did not sustain injury or damages as a result of the accident.

The trial court “should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion . . . .” Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988); Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 711, 622 A.2d 578 (1993). “The decision to set aside a verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb.” Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993). “ ‘In reviewing the action of the trial court in denying the motion ... to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did.’ . . .” (Citation omitted.) Id., 431. In our review of the exercise of this discretion, we accord great weight to the trial court’s decision. Id., 430-31.

“Negligence is conduct which creates an undue risk of harm to others.” Logan v. Greenwich Hospital Assn., 191 Conn. 282, 299, 465 A.2d 294 (1983); 2 Restatement (Second), Torts § 463, comment b (1965). The elements in a cause of action for negligence are “[a] breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff . . . .” Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986). “Recovery of damages in negligence requires proof by a fair preponderance of the evidence . . . .” Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982).

In the present case, the plaintiff was required to prove by a fair preponderance of the evidence that Tyson breached a duty of care owed to the plaintiff, and that that breach was the proximate cause of any actual harm suffered by the plaintiff. See id., 370. At the time of the accident, the highway surface was wet, and the weather was rainy and misty. Tyson was driving no faster than forty-five miles per hour between exit fifteen, where she entered the turnpike, and exit sixteen, where she exited. Exiting the turnpike, she slowed the vehicle in an attempt to stop behind the plaintiff’s vehicle at the traffic light at the end of the ramp. Her vehicle began to skid and collided with the rear of the plaintiffs vehicle. The jury reasonably could have concluded that the plaintiff failed to prove that Tyson was negligent in operating the state vehicle. We conclude that the trial court did not abuse its discretion in denying the plaintiff’s motion to set aside the verdict.

II

The plaintiff next claims that the trial court improperly refused to charge the jury on the plaintiff’s claim that Tyson followed the plaintiff’s vehicle too closely. General Statutes § 14-240 (a) provides: “No driver of a motor vehicle shall follow another vehicle more closely than is reasonable and prudent, having regard for the speed of such vehicles, the traffic upon and the condition of the highway and weather conditions.”

Additional facts are necessary for the resolution of this issue. The plaintiff filed a written request to charge, in accordance with Practice Book § 318, which included a request as to the applicability of General Statutes § 14-240. The trial court refused to charge the jury on this statute stating, “one of the considerations in application of the statute involves the speed of such vehicles” and ruling, “there is no evidence that [Tyson] saw the plaintiffs vehicle at any time while it was moving or other than in a stopped condition at the light.”

“ ‘The charge must give the jury a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and must be suited to guide them in the determination of those issues.’. . .”(Citations omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 19, 633 A.2d 716 (1993). “ ‘The court’s obligation is to frame its instructions so as to be adapted to the issues which are in the case. ... It should refrain . . . from addressing issues which are not in the case.’ ” (Citation omitted.) Id.

Our statutes and case law do not define the phrase “follow another vehicle more closely than is reasonable and prudent”; therefore, “the term must be construed according to the commonly approved usage of the language.” Caldor, Inc. v. Hefferan, 183 Conn. 566, 570, 440 A.2d 767 (1981); see General Statutes § 1-1; Gallacher v. Commissioner of Revenue Services, 221 Conn. 166, 172, 602 A.2d 996 (1992). It is appropriate to look to the “case law from other jurisdictions for guidance in ascertaining that meaning and usage.” Gallacher v. Commissioner of Revenue Services, supra, 172; see also Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 758, 596 A.2d 1331 (1991).

Other courts have addressed circumstances in which the “following too closely” statute is inapplicable. In Milwaukee & Suburban Transport Corp. v. Royal Transit Co., 29 Wis. 2d 620, 630, 139 N.W.2d 595 (1966), the Wisconsin Supreme Court held that the trial court properly refused to charge the jury in regard to the “following too closely” statute, stating: “Although we have previously said that there is a duty of a following vehicle ‘to maintain such a distance behind the preceding vehicle as will enable him to stop his car and avoid a collision, ’ there is no evidence in this case that would reasonably lead one to conclude that the truck driver could not have stopped in time or avoided the collision had he not been guilty of negligent lookout. . . . [I]t is perfectly clear that the legislature did not intend the provisions of [the statute] to apply in all rear-end collisions. The statute is directed against the dangerous and pernicious practice of ‘tailgating.’ ” (Emphasis added.) In that case, the defendant, a truck operator, was driving behind the plaintiff, a bus operator, at a distance of 200 feet. Desiring to pass the plaintiff’s vehicle, the defendant turned his attention to possible traffic behind his vehicle. As he looked forward again, he collided with the plaintiff’s vehicle.

The court’s analysis in Cosse v. Bruley, 445 So. 2d 41, 42-43 (La. App. 1984), is also instructive. In that case, the plaintiff stopped his vehicle suddenly in response to another vehicle’s entering his lane of traffic. The plaintiff’s vehicle was struck in the rear by the first defendant’s vehicle, which was struck in the rear by the second defendant’s vehicle. Prior to the collision, all three vehicles were approximately two car lengths apart and proceeding at a speed of thirty-five to forty miles per hour in the same lane. The court held that the trial court properly granted the defendants’ motions for a directed verdict, stating: “It is well settled that a driver must maintain a sufficient distance from a lead vehicle to allow him to stop under normal circumstances. . . . There is no evidence to suggest that [the defendants] could not have avoided hitting the [plaintiff] had it slowed down or stopped under normal circumstances. . . . It is clear from the testimony that [the first defendant] was not tailgating [the plaintiff] and [the second defendant] was not tailgating [the first defendant].” (Emphasis added.) Id.

While the facts in LaMandri v. Carr, 148 N.J. Super. 566, 372 A.2d 1327 (1977) may be distinguishable, its lesson is still of value. In LaMandri, the plaintiff and the defendant were driving in the same direction along the Garden State Parkway in New Jersey. The defendant’s vehicle, which was proceeding in the left lane, passed the plaintiff’s vehicle in the right lane. When the defendant’s vehicle was approximately 100 yards ahead of the plaintiff’s vehicle, it spun around out of control. Although the plaintiff attempted to avoid a collision, the vehicles collided. The court held that the “following too closely” statute did not apply, stating: “Although there is some uncertainty whether both colliding automobiles need be in motion at the time of the collision, or whether the lead vehicle may be stopped, it seems clear that the essence of the asserted negligence, to justify involving the [following too closely] statute, must be a motorist’s alleged failure to maintain a reasonably safe distance behind another vehicle in the same lane of traffic.

“Here, while the two automobiles had originally been proceeding in the same lane, there was no evidence of any ‘tailgating’ by plaintiff prior to defendant’s loss of control, or of any causal relationship between such ‘tailgating,’ if there was any, and the skidding of defendant’s vehicle. . . . [T]he impact occurred in the course of evasive action taken by plaintiff, and not as the result of following too closely .... We are satisfied that [the statute] was not applicable on the facts here present, and that the instruction concerning it should not have been given.” (Emphasis added.) Id., 572-73; Dolson v. Anastasia, 55 N.J. 1, 10, 258 A.2d 706 (1969).

Additionally, courts have held that the “following too closely” statute does not apply to situations where the rear vehicle is overtaking and passing the lead vehicle; Evans v. General Telephone Co., 257 Or. 460, 463-64, 479 P.2d 747 (1971); and where the lead and rear vehicles are proceeding in different lanes of traffic. Heasley v. Bevilacqua, 100 Cal. App. 155, 160, 223 P.2d 274 (1950).

The Wisconsin Supreme Court determined that its “legislature did not intend the following too closely statute to apply in all rear-end collisions.” Milwaukee & Suburban Transport Corp. v. Royal Transit Co., supra, 29 Wis. 2d 630. Our legislature, like that of Wisconsin, also did not intend General Statutes § 14-240 to apply in all situations. We also agree that the purpose of the statute is very specific: to codify “a duty of a driver of a following vehicle ‘to maintain such a distance behind the preceding vehicle as will enable [the following vehicle] to stop and avoid a collision.’ ” Milwaukee & Suburban Transport Corp. v. Royal Transit Co., supra, 630. “The purpose of holding a trailing driver to a proper distance is to keep [the trailing driver] in position to stop or so control [the vehicle] as to prevent [the trailing driver] from doing injury because of the action of the car ahead . . . .” Northland Ins. Co. v. Avis Rent-A-Car, 62 Wis. 2d 643, 648, 215 N.W.2d 439 (1974). Our statute, like that of New Jersey, “merely incorporates the common law standard [for negligence] into the motor vehicle law to authorize penal sanctions for a violation.” Dolson v. Anastasia, supra, 55 N.J. 10. Since a cause of action for negligence requires a “breach of a duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff”; Catz v. Rubenstein, supra, 201 Conn. 44; it follows that the application of § 14-240 requires evidence that (1) a motor vehicle, while behind another in the same lane of travel, failed to maintain a reasonably safe distance between the vehicles, and (2) the failure to maintain a reasonably safe distance had a causal connection to a resulting collision.

In light of the narrow purpose of the “following too closely” statute, and the specific factual circumstances to which similar statutes have been held inapplicable by courts in Wisconsin, Louisiana and New Jersey, we hold that General Statutes § 14-240 is applicable to situations in which one motor vehicle is behind another in the same lane of traffic, and there is evidence that the operator of the rear vehicle failed to maintain a reasonably safe distance between the vehicles, and that failure had a causal connection to a resulting collision.

In the present case, the plaintiffs vehicle was stopped behind another vehicle at the traffic light at the end of an exit ramp. As Tyson exited the highway, she proceeded along the exit ramp in the same lane of traffic as that in which the plaintiffs vehicle was stopped. As Tyson slowed, her vehicle skidded and collided with the rear of the plaintiffs vehicle. There is no evidence to support the conclusion that Tyson failed to maintain a reasonably safe distance between her vehicle and the plaintiffs vehicle. Since the evidence did not support an application of General Statutes § 14-240, the trial court properly refused to charge the jury as to it.

Ill

Finally, the plaintiff claims that the trial court improperly excluded certain questions on the voir dire concerning venirepersons’ affiliations with insurance companies. Specifically, the plaintiff claims that he was prohibited from asking them whether they or their spouses were employed by insurance companies.

During voir dire, the trial court has wide discretion in conducting the examination of jurors. State v. Pollitt, 205 Conn. 61, 73, 530 A.2d 155 (1987); Robinson v. Faulkner, 163 Conn. 365, 374, 306 A.2d 857 (1972). “[W]e have followed the policy that inquiry on insurance interest and its extent is within the sound discretion of the trial court.” Robinson v. Faulkner, supra, 374.

In the present case, the trial court determined that the information sought by the plaintiff, whether the prospective jurors had ever investigated claims, “could be obtained another way rather than bringing insurance directly into the case.” We conclude that the trial court did not abuse its discretion in excluding the plaintiffs voir dire questions concerning venirepersons’ affiliations with insurance companies.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named Vallerie Tyson, an employee of the state of Connecticut, as a defendant. On October 31, 1988, the court granted the motion filed by the defendant state of Connecticut and the defendant Vallerie Tyson to strike the complaint as to Tyson.

       General Statutes § 14-240 (a) provides: “No driver of a motor vehicle shall follow another vehicle more closely than is reasonable and prudent, having regard for the speed of such vehicles, the traffic upon and the condition of the highway and weather conditions.”

       “[Ejvidence of skidding is not, in and of itself, evidence of negligence.” Lowell v. Daley, 148 Conn. 266, 273, 169 A.2d 888 (1961).

       Because we conclude that the evidence supports the finding of a lack of negligence on the part of the state’s employee, we need not address the plaintiffs claim that the jury was unreasonable in its finding that the plaintiff sustained no injuries as a result of the accident.

       Practice Book § 318 provides in relevant part: “When there are several requests [to charge], they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .” “The purpose of this provision is to require parties to inform the trial court of the manner in which a rule of law applies to a particular case, rather than simply stating an abstract proposition of law.” Konover Development Corp. v. Zeller, 228 Conn. 206, 214 n.5, 635 A.2d 798 (1994), citing Hall v. Burns, 213 Conn. 446, 483, 569 A.2d 10 (1990).
      The defendant claims that the plaintiffs request to charge was inadequate under Practice Book § 318. We conclude that, given the circumstances of this case, the trial court was sufficiently informed by the plaintiffs request to charge to evaluate the applicability of the requested charge to the facts of the case.

       See State v. Tobey, 2 Conn. Cir. Ct. 485, 487-88, 202 A.2d 841 (1964), in which the court discusses Lowell v. Daley, 148 Conn. 266, 273, 169 A.2d 888 (1961). In Lowell the court did not address the issue of the applicability of General Statutes § 14-240 because it concluded that the charge had not been properly requested according to the rules of practice. Although the court stated in dicta, “we incline to the view that the charge, under the claims of proof in this particular case, was not erroneous”; id., 271; we do not rely on this language in deciding the present case. See Allstate Ins. Co. v. Lenda, 34 Conn. App. 444, 458 n.1, 642 A.2d 22 (1994) (Landau, J., dissenting).

       Wis. Stat. § 346.14 provides in pertinent part: “The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

       La. Rev. Stat. Ann. § 32:81 (A) provides in pertinent part: “A following motorist . . . shall not follow another motorist more closely than is reasonable and prudent, having due regard for the speed of the preceding vehicle and the traffic upon and condition of the highway.”

       N.J. Stat. Ann. § 39:4-89 provides in pertinent part: “The driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon, and condition of, the highway.”


author: Spear, J.

text:
    Donald Levy v. Commission on Human Rights and Opportunities et al.
    (12238)
    Lavery, Freedman and Spear, Js.

      Argued February 24
    decision released August 16, 1994

      Jeffrey J. Mirmam, for the appellant (plaintiff).

      Robert B. Hempstead, with whom, on the brief, were Joseph F. Keefe and Lynn D. Wittenbrink, for the appellee (defendant Entertainment and Sports Programming Network).
   Spear, J.

The plaintiff, Donald Levy, appeals from the judgment of the trial court dismissing his appeal from a decision by the named defendant, the commission on human rights and opportunities (CHRO). The CHRO dismissed the plaintiff’s employment discrimination complaint on the basis of its finding that the defendant, Entertainment and Sports Programming Network (ESPN), had not discriminated against the plaintiff. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the CHRO’s hearing officer had applied the correct standard of law for a claim of employment discrimination, (2) substituted its judgment for that of the hearing officer as to whether the defendant had satisfied its burden of proof and (3) concluded that the hearing officer’s findings of fact were supported by substantial evidence on the record. We affirm the judgment of the trial court.

The hearing officer found the following facts. ESPN hired the plaintiff in January, 1980, as a remote operator-truck driver. His duties included driving the truck to various locations where ESPN was covering sporting events, setting up the equipment on location, and performing general maintenance on the trucks. Before being hired, the plaintiff passed a road test and a written examination. No medical examination was required because the defendant had a certificate from a physician dated October 31,1979, stating that he was qualified to operate a remote vehicle. ESPN was aware that the plaintiff’s hearing was impaired when it hired him.

A series of mishaps ensued over the next few months. Shortly after being hired, the plaintiff fell asleep while driving a truck back from a sporting event. A passenger in the truck attempted unsuccessfully to awaken the plaintiff by shouting loudly at him; when the passenger grabbed for the steering wheel, the plaintiff awoke and managed narrowly to avoid an accident. The plaintiff struck an overhang in Louisiana, causing damage to the vehicle, and also struck an overhang while refueling at a gas station in Connecticut.

On another occasion, the plaintiff had continued to operate a remote vehicle while the compressor governor, a component of the braking system, was broken. While on location in Florida and Louisiana, the plaintiff also damaged two cameras in separate, unrelated incidents. In the second incident, the plaintiffs failure to follow explicit instructions resulted in the loss of an expensive camera. Following the second camera incident, the plaintiff was suspended for two weeks without pay and his competence as a truck driver was evaluated. On the basis of the plaintiffs driving history, ESPN concluded that he could not safely operate a truck and therefore removed him from the remote operator position. He was asked to undergo a medical examination by physician Bainbridge Hanley to determine if his hearing impairment had any influence on his driving ability. The plaintiff failed the hearing test. Hanley refused to certify that the plaintiff was qualified as a truck driver because he did not satisfy the minimum medical qualifications set forth in the motor carrier safety regulations; 49 C.F.R. § 391.41 et seq.; because of his hearing deficiency. Accordingly, ESPN stood by its decision to remove the plaintiff from the remote operator position, and in April, 1980, he was assigned to a studio technician position at the same salary that he had been paid as a remote operator.

In November, 1982, ESPN posted an opening for a remote operator for which the plaintiff applied. He did not, however, provide his employer with any updated information regarding his qualifications for the position. Another person, who had extensive experience as a truck driver and mechanic, was selected for that position. The plaintiffs job performance began to deteriorate. On February 20, 1983, he refused to reedit a tape and subsequently walked off his job in the middle of his shift. ESPN posted a second opening for a remote operator on May 13, 1983, but the plaintiff did not apply for that position. He resigned in June, 1983.

On May 23,1983, prior to his resignation, the plaintiff filed a complaint with the CHRO alleging that ESPN had violated his rights under General Statutes § 46a-60 (a) (l) by discriminating against him on the basis of his physical disability, a hearing impairment. The plaintiff specifically asserted that, because of his hearing impairment, ESPN removed him from the remote operator-truck driver position for which he had been hired, deprived him of promotional and other employment opportunities, and constructively discharged him from his employment. Pursuant to General Statutes § 46a-83, the complaint was referred to CHRO investigator Joanne Steinnagel, who conducted an inquiry concerning the allegations raised by the plaintiff and determined that there was reasonable cause to believe ESPN had discriminated against the plaintiff. After several failed attempts to conciliate the matter, Steinnagel certified the complaint for a public hearing.

On December 10,1991, after eight days of hearings, the hearing officer issued her decision dismissing the plaintiffs complaint. On January 27, 1992, the plaintiff appealed the decision of the hearing officer to the trial court, claiming that (1) in light of the direct evidence of discrimination, the hearing officer failed to apply the appropriate standard of evaluating the plaintiffs discrimination claim and therefore failed to shift the burden of proof to ESPN, and (2) the hearing officer’s factual findings were clearly erroneous. A hearing before Hon. David M. Shea, state trial referee, took place on January 5,1993. On February 23,1993, Judge Shea issued a memorandum of decision affirming the decision of the hearing officer. He concluded that the hearing officer properly applied the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to the plaintiff’s employment discrimination claim and that her findings were supported by the evidence. This appeal ensued.

I

The plaintiff first claims that the trial court should have concluded that the CHRO applied an incorrect legal standard for a claim of employment discrimination pursuant to General Statutes § 46a-60 (a) (l). The plaintiff contends that the hearing officer improperly applied the disparate treatment theory when the direct evidence theory was applicable. We disagree.

We look to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute. See State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989); Zlokower v. Commission on Human Rights & Opportunities, 200 Conn. 261, 265, 510 A.2d 985 (1986); Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 489, 503 A.2d 1151 (1986); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982); Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976). The United States Supreme Court has enunciated two theories of discrimination with differing requirements for establishing a prima facie case and the employer’s burdens of proof and production. These theories are the disparate treatment theory; see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802; and the direct evidence theory. See Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion).

The disparate treatment theory is applicable where there is no direct evidence of discrimination but the employer’s actions give rise to an inference of discrimination. To establish a prima facie case of employment discrimination under the disparate treatment theory, the plaintiff must prove by a preponderance of the evidence that: “(1) he is a member of a protected class under the statute; (2) he applied for and was qualified for a position for which the employer was seeking applicants; (3) he was denied the position despite being qualified; and (4) the employer continued to seek applicants for the position after denying the plaintiff’s application.” Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 321 n.14, 596 A.2d 426 (1991), aff'd, 228 Conn. 545, 636 A.2d 1360 (1994), citing McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802; Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 253. If the plaintiff succeeds in establishing a prima facie case, he “in effect creates a presumption that the employer unlawfully discriminated against [him].” Texas Dept. of Community Affairs v. Burdine, supra, 254. The burden then shifts to the employer to “producfe] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, non discriminatory reason.” Id. The employer “need not persuade the court that it was actually motivated by the proffered reasons.” Id.; Wroblewski v. Lexington Gardens, Inc., supra, 188 Conn. 61.

Should the employer carry its burden of production, the plaintiff then has the opportunity to prove by a preponderance of the evidence that the reasons offered by the employer were a pretext for discrimination. McDonnell Douglas Corp. v. Green, supra, 411 U.S. 804. If the finder of fact rejects the employer’s articulated reasons for the alleged discriminatory action, the plaintiff is not entitled to judgment as a matter of law. St. Mary’s Honor Center v. Hicks, U.S. , 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). The plaintiff at all times bears the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 256.

“The United States Supreme Court recognized that the prima facie case set forth in McDonnell Douglas Corporation was not intended to be an ‘inflexible formulation.’ . . . Rather, the requirements of proof must be tailored to the particular facts of each case. . . . When the plaintiff presents direct evidence of discrimination, the McDonnell Douglas Corporation formulation does not apply . . . but rather a modified standard, the direct evidence theory, applies. . . . This departure from the McDonnell Douglas Corporation test is justified by the court’s interpretation that the shifting burdens of proof required by that case were intended to ensure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ ” (Citations omitted.) Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 204-205, 596 A.2d 396 (1991).

Price Waterhouse v. Hopkins, supra, 490 U.S. 228, enunciated the standard to be applied where there is direct evidence of discrimination. “Price Waterhouse was a so-called ‘mixed motives’ case, where the employer made a showing that the plaintiff’s interpersonal problems were a legitimate concern despite evidence of discrimination against her based on gender. Id., 252. The court stated that, where the plaintiff had introduced sufficient evidence that prohibited discrimination had played a motivating part in her rejection from promotion, the employer had to establish by a preponderance of the evidence that a legitimate reason would have led to the same decision in the absence of discrimination. Id. The critical inquiry is whether the discriminatory motive was a factor in the decision at the moment it was made. . . . Id., 241. An alleged discriminator may not prevail in a mixed motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. (Emphasis added.) Id., 252. The plaintiff does, however, retain the burden of persuasion on the issue of whether a discriminatory motive played a part in the decision. Id., 246. Once the plaintiff has adduced sufficiently persuasive direct evidence that the defendant relied on a discriminatory motive, and the defendant has failed to show by a preponderance of the evidence that a legitimate reason existed at the time of the decision and had motivated that decision, the factfinder may render a judgment for the plaintiff.” (Internal quotation marks omitted.) Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 205-206.

The trial court properly affirmed the hearing officer’s application of the disparate treatment theory. Despite the plaintiff’s claim to the contrary, there was no direct evidence of prohibited discrimination by ESPN. ESPN removed the plaintiff from the remote operator position because of the repeated incidents within a period of less than four months, in which the plaintiff caused damage to ESPN’s camera equipment and remote vehicles by failing to follow orders and by disregarding his duty to maintain the vehicles and operate them safely. ESPN would have removed any driver with such a history, with or without a hearing impairment.

After the plaintiff was removed from the remote operator position, ESPN asked him to undergo a medical examination, including a hearing test, to determine whether the plaintiff had any medical problems affecting his driving ability. After an examination on April 21, 1990, in which the plaintiff failed his hearing test, Hanley, the physician conducting the test, refused to certify that he was qualified as a truck driver under the motor carrier safety regulations. Accordingly, ESPN assigned the plaintiff to a position as a studio technician.

Although the hearing officer concluded that the plaintiff successfully established an inference of discrimination by virtue of his hearing disability, the plaintiff failed to establish that any improper or discriminatory factor motivated ESPN to remove him from his position as a remote operator and to deny him the same position at a later date. The plaintiff’s hearing was a legitimate factor to consider because it was directly related to his ability to drive a truck safely.

As there was no direct evidence of prohibited discrimination, the hearing officer properly applied the disparate treatment standard.

II

The plaintiff next claims that the trial court improperly substituted its judgment for that of the hearing officer as to whether ESPN satisfied its burden of persuasion under Price Waterhouse v. Hopkins, supra, 490 U.S. 228. We disagree.

The Uniform Administrative Procedure Act governs the judicial review of administrative agency decisions. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57-58, 591 A.2d 1231 (1991); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). In reviewing an appeal from an administrative agency, the trial court must determine whether “ ‘the agency . . . has acted unreasonably, arbitrarily, illegally or abused its discretion.’ ” Ottochian v. Freedom of Information Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992); Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 541, 556 A.2d 572 (1989); Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). “The trial court may not retry the case or substitute its judgment for that of the agency . . . .’’(Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993), cert. denied, U.S. 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994); O'Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506, 636 A.2d 409 (1994); see General Statutes § 4-183 (g).

The trial court correctly concluded that the hearing officer did not apply the direct evidence theory enunciated in Price Waterhouse v. Hopkins, supra, 490 U.S. 228, and did not shift the burden of persuasion to the defendant. The hearing officer adopted the analysis set forth in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802, and concluded that the plaintiff had presented sufficient evidence to establish a prima facie presumption of discrimination. She then concluded that ESPN had articulated a legitimate and nondiscriminatory reason for transferring the plaintiff to a studio position at equal pay, thus rebutting the plaintiff’s prima facie case; “ESPN was concerned for safety and dependability in its remote operations.” She therefore concluded that the plaintiff had not met his burden of proving by a preponderance of the evidence that the reasons offered by ESPN were a pretext for discrimination.

In its memorandum of decision, the trial court stated that the hearing officer had made findings of fact sufficient to support a determination that, had the Price Waterhouse doctrine been applied, ESPN would have sustained its burden of persuasion. The trial court did not state that the hearing officer should have applied the Price Waterhouse direct evidence theory. Rather, the trial court expressly found that this was not a mixed motive case under Price Waterhouse because of the absence of direct evidence of discrimination. The trial court concluded, therefore, that the hearing officer had correctly applied the McDonnell Douglas standard for allocating the burden of persuasion. Contrary to the plaintiffs assertion, the trial court did not substitute its judgment for that of the hearing officer.

Ill

The plaintiff’s final claim is that the trial court improperly concluded that the hearing officer’s findings of fact were supported by substantial evidence on the record. We disagree.

Under General Statutes § 4-183 (j), the substantial evidence rule governs judicial review of administrative fact-finding. Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 200. In determining whether an administrative finding is supported by substantial evidence, the reviewing court “must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. . . . [A]n agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.” (Citations omitted; internal quotation marks omitted.) Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217-18, 554 A.2d 292 (1989); see also Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). “The determination of issues of fact by the administrative agency should be upheld if the record before the agency affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Ultimately, the question is not whether the trial court would have reached the same conclusion but whether the record before the [agency] supports the action taken. Williams v. Liquor Control Commission, 175 Conn. 409, 414, 399 A.2d 834 (1978).” (Citation omitted; internal quotation marks omitted.) Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 200-201. “If the decision of the agency is reasonably supported by the evidence in the record, it must be sustained.” Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978); Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 582, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988). A review of the record before the CHRO reveals that the findings of the hearing officer were supported by substantial evidence.

A

The plaintiff first contends that the hearing officer’s finding that “Hanley did not certify [the plaintiff] as to the medical standards set forth in 49 C.F.R. [§ 391.41] et seq. because [the plaintiff] failed the hearing portion of the exam” is clearly erroneous. The results of the plaintiff’s hearing test, administered by Hanley on April 21,1980, were admitted into evidence at the hearing. The report indicated that the plaintiff was “not able to hear a whisper at either 5 feet or 20 feet away (facing the other way).” Because the plaintiff did not satisfy the criteria set forth in the motor carrier safety regulations; 49 C.F.R. § 391.41 (b) (11); Hanley refused to sign the certification form that would permit the plaintiff to operate a remote vehicle.

The plaintiff was the only witness who testified that the testing procedures were defective. The hearing officer was not required to believe the plaintiff, but could rely on Hanley’s written statement that the plaintiff was unable to hear a forced whisper at five feet. Laufer v. Conservation Commission, 24 Conn. App. 708, 716, 592 A.2d 392 (1991).

B

The plaintiff further argues that the hearing officer’s finding that he never applied for the May 13,1983 opening for a remote operator was clearly erroneous. A review of the record before the hearing officer reveals that the plaintiff never filed an application in response to the letter posted by ESPN announcing the available position. The plaintiff admitted that he never filed a formal or written application, but testified that he responded to the job posting by informally discussing his interest in it with his supervisor, Joe Commare. The plaintiff testified that he met with Commare in his office regarding the position, but Commare was noncommittal and basically gave him no response. Commare testified, however, that neither the plaintiff nor any individuals from within ESPN applied for the May 13, 1983 opening. The hearing officer was free to believe Commare and conclude as she did. See id.

C

The plaintiff’s final claim is that the hearing officer’s findings that the plaintiff’s “job performance began deteriorating several months prior to his resignation” and that “on February 20,1983, [the plaintiff] refused to reedit a tape and subsequently walked off his job in the middle of a shift” were clearly erroneous. Contrary to the plaintiff’s assertions, these findings were supported by substantial evidence in the record. The plaintiff’s immediate supervisor, Gerald Weed, testified that “during the last few months before the plaintiff’s resignation, the plaintiff was away from the department whenever he was supposed to be in there editing; the number of personal phone calls; a pattern started forming . . . he would take a sick day either the day before his days off or the day after his days off.” Weed also testified that “[a] couple of employees came to [him] with complaints that [the plaintiff] was not doing his work there at night”; and that there was “a noticeable decline in the plaintiff’s work, three or four months before he left.”

William Lamb, a member of ESPN’s engineering department, testified to the February 20,1993 incident in which the plaintiff walked off the job in the middle of his shift. A letter describing the incident was also admitted as an exhibit.

The plaintiff claims that the hearing officer ignored his testimony that he felt he was constructively discharged by ESPN, and credited only the testimony of ESPN’s witnesses. It is the hearing officer’s prerogative to assess the credibility of the witnesses and believe or disbelieve any evidence presented. Briggs v. State Employees Retirement Commission, supra, 210 Conn. 214. Thus, the trial court correctly held that the hearing officer’s findings were not clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-183 requires that the CHRO be named a defendant. Because, however, the CHRO was in privity with and an advocate for the plaintiff during the administrative proceedings, it believed it could not oppose him on appeal and repudiate a position it had recently espoused. Accordingly, subsequent to the filing of this appeal, on April 20,1993, the CHRO submitted a statement indicating that it could not participate in the appeal in light of Quist v. Commission on Human Rights & Opportunities, Court of Common Pleas for Tolland County, Docket No. 5055 (November 10,1975).

       On the same day that he was evaluated by Hanley, the plaintiff also underwent an audiogram at the University of Connecticut Medical Center performed by James Dempsey, an audiologist. Dempsey concluded that the plaintiff met the minimum hearing requirement under the department of transportation standards as well as the requirements of 49 C.F.R. § 391.41 (b) (11) of the motor carriers safety regulations. The plaintiff’s supervisor disregarded the results of the audiogram, however, as it was not performed by a licensed physician in compliance with 49 C.F.R. § 391.43 (a). See footnote 3 for the text of the regulations.

       Section 391.41 of title 49 of the Code of Federal Regulations provides in pertinent part: “(a) A person shall not drive a motor vehicle unless he is physically qualified to do so and, except as provided in § 391.67 has on his person the original, or a photographic copy, of a medical examiner’s certificate that he is physically qualified to drive a motor vehicle.
      “(b) A person is physically qualified to drive a motor vehicle if that person ... (11) [f]irst perceives a forced whisper voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA standard) Z24.5 — 19S1.”
      Section 391.43 of title 49 of the Code of Federal Regulations provides in pertinent part: “(a) Except as provided in paragraph (b) of this section the medical examination shall be performed by a licensed doctor of medicine or osteotherapy.

      “(b) A licensed optometrist may perform so much of the medical examination as pertains to visual acuity . . . .” (Emphasis added.)

       General Statutes § 46a-60 (a) provides in pertinent part: “It shall be discriminatory practice in violation of this section: (1) For an employer, by himself or his agent ... to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s . . . physical disability . . . .”
      General Statutes § 46a-51 (15) defines “physically disabled” as referring “to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment . . . .” (Emphasis added.)

       See footnote 4.

       The plaintiff has adopted the language of the plurality opinion of Price Waterhouse, which does not specifically refer to a “direct evidence” theory, but, rather, characterizes Price Waterhouse as a “mixed motives” case. Our Supreme Court, however, in applying the Price Waterhouse analysis, has adopted the term “direct evidence theory.” See Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 596 A.2d 396 (1991). Accordingly, we use the term “direct evidence theory” in the present case, in place of the term “mixed motives” theory.
      The United States Supreme Court also set forth the disparate impact theory which “applies to patterns and practices which are facially neutral but discriminatory as applied, and does not require evidence oí subjective intent to discriminate. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-46, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989).” Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 202 n.8. The disparate impact theory is not at issue here.

       “Direct evidence has been held to include discriminatory statements by decisionmakers related to the decisionmaking process. See Price Waterhouse v. Hopkins, 490 U.S. 228, 255-58, 109 S. Ct. 1775, 104 L. Ed. 2d 523 (1989); Equal Employment Opportunity Commission v. Alton Packing Corporation, 901 F.2d 920, 924 (11th Cir. 1990). Direct evidence has also been held to include a policy discriminatory on its face. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) . . . .” Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 206.

       General Statutes § 4-183 (j) provides in pertinent part: “The [reviewing] court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”


text:
    In re Felicia D.

    (12593)
    Dupont, C. J., and Foti and Landau, Js.
    Argued April 28
    decision released July 8, 1994

      Barbara J. Claire, for the appellant (respondent).

      Nina F. Elgo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, Benjamin Zivyon and Carolyn Querihero, assistant attorneys general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, 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.

   Landau, J.

The respondent mother appeals from the judgment of the trial court granting termination and neglect petitions filed by the department of children and families (DCF) as to her two daughters, Felicia and Janelle. The respondent claims that the trial court improperly (1) denied her motion to dismiss the termination petition regarding Felicia, (2) held that DCF had proved by clear and convincing evidence that she had failed to rehabilitate herself pursuant to General Statutes § 17a-112 (b), (3) held that DCF had proved that she had denied Janelle necessary care by reason of act or acts of omission or commission, (4) held that DCF had proved by clear and convincing evidence that the children’s best interests were served by the termination of her parental rights.

The following facts are relevant to this appeal. Felicia was born on December 29,1986. After Felicia had been admitted to the hospital on several occasions, DCF filed a neglect petition on April 4,1987. Felicia was adjudicated uncared for by agreement of the parties on June 9,1987, and the court committed her to DCF for an eighteen month period. The trial court extended the commitment period on two occasions, November 18, 1988, and April 20, 1990. Effective October 20, 1991, the trial court revoked the commitment, and entered an order of protective supervision for six months, permitting Felicia to return to her mother’s custody subject to certain terms and expectations.

Janelle, Felicia’s younger sister, was born to the respondent on April 16, 1991. On January 11, 1992, Janelle sustained serious physical injuries while in the mother’s care. Janelle was flown by Life Star helicopter to Hartford Hospital where she was diagnosed as suffering from a skull fracture, subdural hematoma, and bruising on the skull, buttocks and anus. On January 15,1992, DCF filed a neglect petition in the interest of Felicia and coterminous petitions in the interest of Janelle in the Superior Court. On February 26,1992, the trial court, upon the agreement of the parties, adjudicated both Felicia and Janelle neglected as alleged in the petitions. The court committed Janelle to the custody of DCF for a period of eighteen months, and permitted Felicia to remain at her mother’s home subject to eighteen months of protective supervision. The protective supervisory order prohibited the mother from allowing any man into her residence without obtaining advance approval from DCF. On April 10, 1992, the trial court, faced with allegations of a violation of that supervisory order, issued an ex parte order of temporary custody of Felicia to DCF. On the same date, DCF moved to open and modify the disposition of Felicia’s neglect adjudication and to have her committed to the department.

On May 22, 1992, DCF filed petitions with the trial court seeking the termination of the respondent’s parental rights to both Felicia and Janelle. A hearing was held between January 11 and March 1, 1993. On January 15,1993, the mother filed a motion to dismiss the petition as to Felicia, claiming that the court lacked subject matter jurisdiction. On February 5, 1993, the trial court orally denied the mother’s motion to dismiss and granted the petitions, and, on May 21,1993, issued a memorandum of decision addressing both.

I

The respondent argues that the trial court improperly denied her motion to dismiss the petition as to Felicia because it lacked subject matter jurisdiction in three respects: (1) the petition alleged that Felicia was committed to the custody of DCF; (2) the petition alleged as the sole ground for termination the respondent’s failure to rehabilitate; and (3) the petition alleged that this ground existed for a period greater than one year. The respondent claims that none of these allegations is true.

A

The respondent contends that because the petition form indicated that Felicia was committed to DCF, when in fact, she was not, the subject matter jurisdiction of the trial court was never invoked.

It is clear from the facts of this case that the trial court proceeded in this action under the supposition that Felicia was not committed. The trial court had committed Felicia to DCF in the past on June 9,1987, and twice extended that period. On October 8, 1991, the court revoked the commitment and entered an order of protective supervision effective October 20. On February 26, 1992, before the order of protective supervision lapsed, the court, upon agreement of all parties, adjudicated both Janelle and Felicia neglected children. Janelle was committed to the custody of DCF and Felicia was permitted to return to her mother’s home under the condition, inter alia, that no male be allowed in the mother’s residence without DCF’s advance approval. On the basis of a violation of this condition, on April 10,1992, the trial court issued a new ex parte order of temporary custody to DCF. DCF also filed a motion to open and modify the disposition of Felicia’s neglect adjudication and to have Felicia committed. This second neglect petition was filed before the order of protective supervision lapsed. The order of protective supervision was in effect at the time of the hearing before the trial court. The trial court, therefore, at all times pertinent to the resolution of issues raised in the motion to dismiss, proceeded with the knowledge that Felicia was not a committed child.

Subject matter jurisdiction is the power of the court “to hear and determine cases of the general class to which the proceedings in question belong.” Bank of Babylon v. Quirk, 192 Conn. 447, 449, 472 A.2d 21 (1984). The factual basis for the respondent’s motion to dismiss is that on the form for petition for the termination of parental rights, in the section designated “Jurisdiction Based On,” the petitioner checked the box next to the phrase “Child Committed to the Custody of the Commissioner of the Department of Children and Youth Services (Gen. Stat. § 17a-112),” rather than the box next to the phrase “Neglect Petition accompanied by Petition for Termination of Parental Rights (Coterminous Petitions) (Gen. Stat. § 17a-112).” The thrust of the respondent’s argument is unclear. She seems to be arguing that, since the petitioner checked a particular box, the subject matter jurisdiction of the trial court was not invoked so as to have the power to act on a coterminous petition, but only to act on a petition concerning a child who was committed to the custody of DCF. In In re Michael M., 29 Conn. App. 112, 119-20, 614 A.2d 832 (1992), this court held that a clerical defect will not deprive a court of subject matter jurisdiction if it is clear from the pleadings that the court’s jurisdiction was correctly invoked. In this case, the trial court held that because the petition sought to terminate parental rights “in the best interest of the child and for the following reasons .... The child has been found in a prior proceeding to have been neglected or uncared for. The mother 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, she could assume a responsible position in the life of the child.” It was clear that the court was acting with the knowledge that the child was not committed at the time of the petition’s filing.

The respondent also argues that the trial court could not have terminated her parental rights pursuant to § 17a-112 (e) unless the termination petition was accompanied by a neglect petition that shared a common basis that was anticipated at the time each was filed. She claims that the trial court improperly found that the termination petition accompanied only a neglect petition filed in 1987. The 1987 petition, the respondent argues, was based on the inability to meet Felicia’s specialized needs rather than on allegations of neglect, and therefore, does not share a common ground with the termination petition. This claim must fail. The trial court properly found that it had subject matter jurisdiction pursuant to § 17a-112 (e) because “the termination petition regarding Felicia, which accompanies the earlier [1992] petition resulting in her adjudication as a neglected child, is construed as being a ‘coterminous petition . . . .’ ” On the basis of this argument, the trial court did not lack subject matter jurisdiction.

B

The respondent also claims that the trial court lacked subject matter jurisdiction because the petition alleged as the sole ground for termination the respondent’s failure to rehabilitate. The respondent contends that, even if the neglect petition and the parental termination petition are construed as coterminous, the failure to rehabilitate is not a statutory ground for termination included in General Statutes § 45a-717, which she asserts is the statute authorizing the trial court to terminate parental rights when faced with a coterminous petition.

Coterminous petitions are authorized by General Statutes § 17a-112 (e). That section provides in part: “Any petition brought by the commissioner of children and youth services to the superior court . . . may be accompanied by a petition for termination of parental rights filed in accordance with this section with respect to such child . . . .’’(Emphasis added.) It is clear that “this section” refers to § 17a-112 in general. That would include subsection (b) which lists “the failure to rehabilitate” as a ground for termination. General Statutes § 17a-112 (b) (2).

In addition, the petition form itself, JD-JM-40 Rev. 4-91, which is the proper vehicle for the termination of parental rights via a coterminous petition, lists the grounds on which the commissioner may seek termination. One of those listed on the form on which DCF may seek termination “as provided by . . . C.G.S. [§] 17a-112” is that “[t]he child has been found in a prior proceeding to have been neglected or uncared for. The [mother] 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, [she] could assume a responsible position in the life of the child.”

We conclude then that it is clear that a coterminous petition is properly sought pursuant to General Statutes § 17a-112, and the grounds for seeking termination are provided therein. Therefore, this statutory claim fails.

C

The respondent finally argues that the court lacked subject matter jurisdiction to hear this matter because the alleged failure to rehabilitate on the part of the mother did not exist for greater than one year as DCF had indicated in its petition. She contends that because the 1992 neglect petition was filed only three months prior to the termination petition, there was no compliance with the statute.

In accordance with General Statutes § 17a-112 (b), the trial court may terminate parental rights if it determines that the conditions for termination had been in existence “over an extended period of time, which . . . shall not be less than one year.” See In re Saba P., 13 Conn. App. 605, 609, 538 A.2d 711, cert. denied, 207 Conn. 811, 541 A.2d 1241 (1988). “ ‘Whether the grounds for termination [of parental rights] exist for not less than one year is a question of fact to be determined by the [trial] court from the facts and circumstances in any given case.’ In re SabaP., [supra, 610].” In re Romance M., 30 Conn. App. 839, 858, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994). In fact, the court, in Saba, stated that the statutory year does not require a fixed starting date. “The statutory requirement is, simply that, at the time of the adjudication, statutory grounds exist for the termination of parental rights, and that those grounds must have existed for not less than one year. . . . [The statute] requires only that the ground exist for not less than one year.” In re Saba P., supra, 609.

In this case, Felicia had been the subject of neglect petitions for a period of five years. The trial court’s decision that the ground for termination, the respondent’s failed efforts to rehabilitate, existed for not less than one year was appropriate.

II

The respondent’s remaining claims are that the trial court, in granting the termination petitions as to both children, improperly concluded that the petitioner proved by clear and convincing evidence that the respondent had failed to rehabilitate, that she denied Janelle by acts of commission or omission the care necessary for her well-being, and that it was in their best interests to terminate her parental rights.

“ 'On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported.’ In re Michael M., [supra, 29 Conn. App. 121]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980); nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987).” In re Kezia M., 33 Conn. App. 12, 16-17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).

The respondent challenges the trial court’s finding that she failed to rehabilitate. This ground of termination is defined as “the parents of a child who has been found ... to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child.” General Statutes § 17a-112 (b) (2). “ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). “Our Supreme Court has held that § [17a-112] (b) (2) ‘requires the trial court to analyze the respondent’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.” ’ In re Luis C., [210 Conn. 157, 167, 554 A.2d 722 (1989)]:” In re Michael M., supra, 29 Conn. App. 124. “A determination by the trial court under § [17a-112] (b) (2) that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is ‘ “not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 221-22].” ’ In re Luis C., supra, 166, quoting In re Juvenile Appeal (84-3), [1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984)].” Id., 126.

The trial court found that the respondent, over a period of five years, demonstrated poor judgment and poor supervision in caring for her young children. The respondent continually associated with men known to have abusive tendencies toward children in violation of protective supervisory orders of the trial court. When DCF confronted her with these violations, she complained that she could not control whether men came to visit. She could not control her temper, which constantly posed a danger to her children’s welfare, and disobeyed DCF recommendations. In an effort to aid her in rehabilitation, DCF extended a variety of services to the respondent in the form of counseling, assigning a parent aide worker, and parental training from a foster parent. The mother faithfully had visited her children, and had not been prevented from developing meaningful relationships with them. During the visits, the respondent, however, had demonstrated inappropriate behavior such as quarreling with Felicia, refusing to speak to Felicia, chatting with the foster grandmother rather than making an effort to interact with her daughter, name calling, and threatening not to visit if Felicia told a doctor that she had hit her. On one occasion, when the foster mother and Felicia were at a mall and unexpectedly encountered the respondent, Felicia clung to the foster mother and showed no interest in her mother. When Janelle exhibited symptoms that could have resulted only from sexual abuse, the respondent defended her husband who had been left to watch the girls. While the respondent did not inflict injury on her children, she had, despite warnings, exposed them to dangerous characters and failed to protect them.

Our review of the record discloses that the trial court considered the statutory criteria of personal rehabilitation within the meaning of § 17a-112 (b) (2), and properly concluded that the petitioner had presented clear and convincing evidence that the respondent failed to rehabilitate herself as to both Felicia and Janelle as required under the statute.

The respondent contends that the petitioner failed to establish by clear and convincing proof that she had denied Janelle necessary care by reason of an act or acts of omission or commission.

“General Statutes § 17a-112 (b) (3) authorizes the termination of parental rights where ‘the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control neeessary for his [or her] physical, educational, moral or emotional well-being.’ This provision authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to the child. See In re Theresa S., 196 Conn. 18, 25-27, 491 A.2d 355 (1985); In re Kelly S., [29 Conn. App. 600, 614, 616 A.2d 1101 (1992)]; In re Sean H., 24 Conn. App. 135, 144-45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991).” In re Kezia M., supra, 33 Conn. App. 19.

The trial court found that Janelle was a victim of sexual abuse, and had sustained serious head injuries. Janelle received the injuries while in the respondent’s care and the respondent offered no explanation consistent with those injuries. The court also found that although the respondent was not the person who inflicted serious physical injury on Janelle, she continually exposed her to the risk of serious injury by associating with dangerous men. She did not act to protect Janelle from sustaining the injuries she received, and she did not acknowledge the possibility that her husband, Peter Signorino, might have caused the injuries. These circumstances, the court held, cast grave doubt on the respondent’s ability to parent. We conclude that the trial court’s conclusion that this ground for termination existed as to Janelle is legally correct and factually supported.

The respondent next claims that the petitioner did not prove by clear and convincing evidence that termination is in the best interests of the children pursuant to General Statutes § 17a-112 (d). The trial court, in its memorandum of decision, made specific findings regarding the six statutory factors necessary in the adjudicatory phase for consideration in a proceeding to terminate parental rights. See In re Romance M., supra, 30 Conn. App. 847-48. The trial court found that DCF offered and provided many services to the respondent mother “from the beginning of its involvement in 1987.” The respondent violated the condition of a supervisory protection order on numerous occasions by associating with men who posed a risk to her children. The trial court found that the children recognized their biological mother but did not seem to have close emotional ties with her, and seemed to be closer to their foster mothers. The trial court also found that while the respondent had accepted services and counseling, and maintained contact with her children, she had failed to disassociate herself from those individuals who posed a risk to her children, resulting in serious injury to one of them. Finally, the trial court noted that there was no evidence of anything that prevented the respondent from developing a meaningful relationship with her children.

The trial court considered the relevant statutory-criteria and its findings were supported by clear and convincing evidence pursuant to § 17a-112 (d). Given these findings and the special needs of the children involved, the trial court held that termination of the respondent’s parental rights would afford the children the opportunity to receive prompt permanent planning for their futures, a prospect that was in their best interests. We conclude that its factual findings and conclusion are supported by the evidence in the record and are not clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221-22; In re Romance M., supra, 30 Conn. App. 847.

The judgment is affirmed.

In this opinion the other judges concurred.

       The department of children and youth services (DCYS) is now known as the department of children and families (DCF).

       General Statutes § 17a-112 (b) provides: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child; or (S) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.”

       The court set expectations that required the respondent, inter alia, to cooperate with home based services including the visiting nurse service and the foster grandparents program.

       The memorandum stated that because the court had found sufficient proof to grant the termination petitions, the pending motion requesting a modification of the existing disposition of the protective supervisory order converting it to a commitment was moot.

       All parties conceded at trial that Felicia was not a committed child.

       Judicial Branch form JD-JM-40 Rev. 4-91.

       The requirement in General Statutes § 17a-112 (b) that the grounds for termination of parental rights must have existed for not less than one year does not implicate the trial court’s subject matter jurisdiction. Subsection (c) of the same statute allows the trial court to waive this requirement if it finds from the totality of the circumstances that such a waiver would be in the best interests of the child. The failure of a respondent to raise at the trial level a claim regarding compliance with the one year requirement, or the propriety of granting a waiver, has barred appellate review. See In re Romance M., 229 Conn. 345, 352, 641 A.2d 378 (1994). If the one year requirement deprived the trial court of subject matter jurisdiction the issue could be raised at any time and would be subject to review.

       The respondent’s husband, Peter Signorino, was convicted of risk of injury and reckless endangerment and is currently incarcerated.

       General Statutes § 17a-112 (d) 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 or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) 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; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his 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; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his 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 (6) 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.”