text:
    TROY B. WILLIAMS v. STATE OF CONNECTICUT, JUDICIAL BRANCH, ET AL.
    (AC 31630)
    Robinson, Alvord and Peters, Js.

      Argued September 14
    officially released November 2, 2010

      Troy B. Williams, pro se, the appellant (plaintiff).

      Kenneth H. Kennedy, Jr., assistant attorney general, with whom, on the brief, were Richard Blumenthal,
      attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiff in this workers’ compensation matter, Troy B. Williams, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) dismissing his claim for benefits under the Workers’ Compensation Act, General Statutes § 31-275 etseq., against the defendant, the state of Connecticut, judicial branch. On appeal, the plaintiff claims that (1) the board improperly upheld the commissioner’s finding that the plaintiff engaged in wilful and serious misconduct, and (2) the commissioner improperly failed to draw an adverse inference against the defendant on the basis of spoliation of evidence. We affirm the decision of the board.

The following facts and procedural history are necessary to the resolution of the plaintiffs appeal. At the time of the incident giving rise to this appeal, the plaintiff was employed by the defendant as a juvenile transportation officer (officer). On May 6, 2005, the plaintiff participated in a basketball game in a gym with seven detainees at the Hartford Juvenile Detention Center. At some point during the game, the plaintiff jumped in the air, knocked the ball out of a detainee’s hands and began walking away. Although the plaintiff had an opportunity to continue to walk away, he turned around when the detainee said something. He walked toward the detainee until the two stood chest to chest. Shortly thereafter, a physical confrontation ensued when the plaintiff lunged toward the detainee and grabbed him under the arms, at which point the plaintiff almost landed on his knees when he lost his balance. As the plaintiff continued to hold onto the detainee, he regained his balance and continued to lunge forward. Two officers intervened in the struggle and restrained the detainee.

The plaintiff submitted a workers’ compensation claim for injuries resulting to his back, neck, right wrist, ribs and right knee. At a hearing before the commissioner, the plaintiff claimed that his injuries arose out of and in the course of his employment. The defendant argued that the plaintiff was not entitled to benefits because his injuries were caused by wilful and serious misconduct within the meaning of General Statutes § 31-284 (a). 6On June 11, 2008, the commissioner ruled in favor of the defendant, finding that the plaintiff “did not use proper restraint and crisis intervention techniques” but instead “used unauthorized and unnecessary force against the detainee, which constituted wilful and serious misconduct for [an officer].” As a result, the commissioner dismissed the plaintiffs claim. The plaintiff appealed from the commissioner’s decision to the board, which upheld the commissioner’s decision. This appeal followed.

We begin by setting forth the standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established.” Cerrero v. Mory’s Assn., Inc., 122 Conn. App. 82, 90, 996 A.2d 1247, cert. denied, 298 Conn. 908, 3 A.3d 68 (2010). “The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner . . . .” (Citation omitted; internal quotation marks omitted.) Patemostro v. Arborio Corp., 56 Conn. App. 215, 218-19, 742 A.2d 409 (1999), cert. denied, 252 Conn. 928, 746 A.2d 788 (2000). “[T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998). “Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Paternostro v. Arborio Corp., supra, 219; see also Marroquin v. F. Monarca Masonry, 121 Conn. App. 400, 413, 994 A.2d 727 (2010).

“This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Paternostro v. Arborio Corp., supra, 56 Conn. App. 219.

I

First, the plaintiff claims that the board improperly upheld the commissioner’s finding that the plaintiff engaged in wilful and serious misconduct. Specifically, the plaintiff claims that the commissioner’s conclusion that the plaintiffs restraint techniques constituted wilful and serious misconduct was not supported by the record. We disagree.

Section 31-284 (a) provides in relevant part that “compensation shall not be paid when the personal injury [to the employee] has been caused by the wilful and serious misconduct of the injured employee . . . .” Our Supreme Court has recognized that “wilful and serious misconduct means something more than ordinary negligence.” Gonier v. Chase Cos., 97 Conn. 46, 56, 115 A. 677 (1921); accord Greene v. Metals Selling Corp., 3 Conn. App. 40, 45, 484 A.2d 478 (1984). “[S]erious misconduct is wrong or improper conduct of a grave and aggravated character, and this is to be determined from its nature and not from its consequences. . . . The exposure by an employee of himself to iruury would be misconduct if he knew of and appreciated his liability to injury, and would be serious misconduct if the circumstances indicated that the misconduct, in the light of his knowledge, was of agrave and aggravated character, and that he appreciated this fact.” Mancini v. Scovill Mfg. Co., 98 Conn. 591, 597, 119 A. 897 (1923).

“Not only must the misconduct be of this grave character, but under the statute it must also be wilful.” Gonier v. Chase Cos., supra, 97 Conn. 55. “Wilful misconduct differs from serious misconduct, in that the former may be any kind of wrong or improper conduct, while the latter must be the conduct which is not only wrong or improper, but also of a grave and aggravated character. Further, wilful misconduct must be either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to him who is guilty of it.” (Internal quotation marks omitted.) Mancini v. Scovill Mfg. Co., supra, 98 Conn. 597-98. “Reckless misconduct is highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Paternostro v. Arborio Corp., supra, 56 Conn. App. 221.

After reviewing the record, we conclude that the evidence presented was adequate to support the commissioner’s finding that the plaintiffs use of force against the detainee constituted wilful and serious misconduct. The evidence before the commissioner revealed that coming chest to chest with a detainee and grabbing him under the arms was not a proper restraint technique, even under emergency circumstances, because of the possibility of injury to both the officer and the detainee. According to the other officers who were present and the plaintiffs supervisor, a proper technique under the circumstances would have included approaching the detainee from an angle, or walking away from the detainee, instructing the detainee to calm down and asking for assistance from one of the other officers present. Moreover, by his own admissions, the plaintiff conceded that coming face to face with a detainee was not a proper technique, and that he had been taught to keep a safe distance from a detainee and to approach from an angle during a confrontation.

Therefore, we reject the plaintiff’s claim that the board improperly upheld the commissioner’s finding that the plaintiff engaged in wilful and serious misconduct.

II

Second, the plaintiff claims that the commissioner improperly failed to draw an adverse inference against the defendant on the basis of spoliation of evidence. Specifically, the plaintiff claims that the commissioner was required to draw an adverse inference against the defendant because it did not produce the footage from a second surveillance camera that was operating in the gym at the time of the incident. We disagree.

The following additional facts are relevant to the resolution of the plaintiff’s second claim on appeal. At the time of the incident, two surveillance cameras were operating in the gym. At the hearing before the commissioner, the defendant provided the footage from one camera but was unable to provide the footage from the second camera. Jennifer Bott, the deputy superintendent of the Hartford Juvenile Detention Center, explained that the cameras in the gym typically tape over themselves in approximately thirty days unless the facility captures the footage within that time period. Bott testified that, although she could not recall viewing the footage from the second camera before it was lost, she believed that, based on the camera’s positioning, it would not have covered the area of the gym where the incident occurred. She also testified that had the camera captured any part of the incident, the footage would have been saved, as it had been in other situations involving questionable incidents.

In Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829 (1996), our Supreme Court “adopt[ed] the rule of the majority of the jurisdictions that have addressed the issue [of spoliation of evidence] in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” (Emphasis added.) “To be entitled to this inference, the victim of spoliation must prove that: (1) the spoliation was intentional, in the sense that it was purposeful, and not inadvertent; (2) the destroyed evidence was relevant to the issue or matter for which the party seeks the inference; and (3) he or she acted with due diligence with respect to the spoliated evidence. . . . We emphasized that the adverse inference is permissive, and not mandatory . . . .” (Citation omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 237, 905 A.2d 1165 (2006).

In the present case, even if we assume, without deciding, that the plaintiff produced evidence sufficient to permit the commissioner to draw an adverse inference, the decision as to whether or not to draw such an inference was within the discretion of the commissioner. See Surrells v. Belinkie, 95 Conn. App. 764, 771, 898 A.2d 232 (2006). Despite the plaintiffs argument to the contrary, the commissioner was not obligated to draw an adverse inference against the defendant simply because it failed to save the footage from the second camera before it was recorded over. After reviewing the record, we conclude that the testimony provided by Bott was sufficient to support the commissioner’s decision not to draw an adverse inference, and we will not second-guess his determination of the credibility of the witness. See Keenan v. Union Camp Corp., supra, 49 Conn. App. 286.

Therefore, we reject the plaintiffs claim that the commissioner improperly failed to draw an adverse inference against the defendant.

The decision of the workers’ compensation review board is affirmed.

       GAB Robins North America, Inc., the workers’ compensation administrator for the state of Connecticut judicial branch, is also a defendant in this case but has not participated in this appeal. For convenience, we refer in this opinion to the state as the defendant.

       In his brief on appeal, the plaintiff also contends that (1) the defendant violated “the Connecticut Rules of Practice, Connecticut General Statutes, case law and the spirit and intent of the Workers’ Compensation Act . . . along with the free flow and disclosure of information and documentation between the parties and with the Commission,” and (2) the commissioner violated his “right to due process and the basic right to be afforded a full and fair trial . . . .” We consider these claims to be both without merit and inadequately briefed, and thus decline to review them. See Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238 (2010) (“[w]e are not required to review claims that are inadequately briefed” [internal quotation marks omitted]).

       The officer position required the plaintiff to transport detainees to court appearances, medical appointments and other appointments, and to maintain control of detainees when their behavior became physically threatening to themselves or to others. As an officer, the plaintiff received training in restraint and crisis intervention techniques.

       The commissioner’s findings reveal that it is appropriate behavior for an officer, after transporting detainees, to remain in the facility and to participate in basketball games with detainees.

       General Statutes § 31-284 (a) provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee . . .

       The plaintiff submitted a forty-seven page motion to correct, which the commissioner granted only to correct a few scrivener’s errors.

       We reject the plaintiffs argument to the extent that he argues that the commissioner erred by not accepting his testimony as the true version of the facts. “Because the commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses,” it was properly within the commissioner’s discretion to rely on all, part or none of the plaintiffs testimony in reaching the decision. Keenan v. Union Camp Corp., supra, 49 Conn. App. 286.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    BOONE SYNAKORN v. COMMISSIONER OF CORRECTION
    (AC 30941)
    DiPentima, C. J., and Beach and Hennessy, Js.

      Argued September 8
    officially released November 2, 2010

      Deren Manasevit, special public defender, for the appellant (petitioner).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Jonathan C. Benedict, former state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The petitioner, Boone Synakom, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his appellate counsel had provided ineffective assistance of counsel. We dismiss the appeal.

The following facts and procedural history are relevant to the resolution of the petitioner’s appeal. The jury found the petitioner guilty of possession of at least one-half gram of cocaine in free-base form with intent to sell in violation of General Statutes (Rev. to 1991) § 21a-278 (a), possession of cocaine in free-base form with intent to sell within 1000 feet of a public school in violation of General Statutes (Rev. to 1991) § 21a-278a (b) and possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). The court sentenced the petitioner to a prison term of thirty years. The petitioner, represented by attorneys Robert G. Golger and Howard T. Owens, Jr., unsuccessfully appealed his conviction. See State v. Synakorn, 239 Conn. 427, 685 A.2d 1123 (1996).

On September 10, 2008, the petitioner filed an amended petition for a writ of habeas corpus, alleging the ineffective assistance of appellate counsel. He alleged that his appellate attorneys provided ineffective assistance of counsel by failing to raise (1) a claim that the trial court improperly denied motions for a mistrial and a new trial on the basis of prejudicial testimony and (2) a claim of insufficient evidence to sustain his conviction.

On February 11,2009, the habeas court issued a memorandum of decision denying the petition for a writ of habeas corpus. With respect to count one of the petition, the habeas court concluded that the petitioner had failed to establish either deficient performance or prejudice with respect to his counsels’ strategic decision not to pursue any claim on appeal regarding the motions for a mistrial or a new trial. With respect to the second count, the court concluded that the petitioner faded to prove that his appellate counsel were ineffective by failing to raise a sufficiency claim. Accordingly, the court denied the petition for a writ of habeas court. On February 23, 2009, the court denied the petition for certification to appeal.

We begin by setting forth our standard of review and the general legal principles applicable to the petitioner’s appeal. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Gregory v. Commissioner of Correction, 111 Conn. App. 430, 432-33, 959 A.2d 633 (2008), cert. denied, 290 Conn. 906, 962 A.2d 794 (2009).

“A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution.” (Internal quotation marks omitted.) Watson v. Commissioner of Correction, 111 Conn. App. 160, 167, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008). “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. ... It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Emphasis in original; internal quotation marks omitted.) Tuck v. Commissioner of Correction, 123 Conn. App. 189, 194, 1 A.3d 1111 (2010).

In cases involving claims of ineffective assistance of appellate counsel, our Supreme Court has instructed that, in determining whether a petitioner has satisfied the prejudice prong, the question is whether there is a reasonable probability that but for the error of counsel, the petitioner would have prevailed on his appeal. Gregory v. Commissioner of Correction, supra, 111 Conn. App. 435 n.4; see also Small v. Commissioner of Correction, 286 Conn. 707, 717-28, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). We therefore undertake an analysis of the merits of the underlying claims. See Small v. Commissioner of Correction, supra, 728. Additionally, we note that “the task before us is not to conclude definitively whether the petitioner, on appeal, would have prevailed on his claim .... Rather, the task before us is to determine, under Strickland, whether there is a reasonable probability that the petitioner would have prevailed on appeal.” (Emphasis in original.) Id., 731.

In its decision on direct appeal affirming the petitioner’s conviction, our Supreme Court set forth the following facts. “Pursuant to a search warrant, on February 21, 1992, state and local law enforcement officials executed a search of an apartment in Bridgeport that the [petitioner] shared with Mary Dudac and Sean Lay. During the course of that search, the police seized a black duffel bag and a paper bag from a living room closet. Inside these bags police found 6002 vials containing a substance that appeared to be crack cocaine. . . . The evidence officer who participated in the search, Detective Esther Ramos of the Bridgeport police department, testified that the cocaine was packaged in the vials for street sale.

“While searching the kitchen cabinets, apolice officer found a metal tin that contained a plastic bag filled with a plant-like substance. Another, larger, plastic bag found with the tin contained twenty-five small ‘zip-lock’ bags containing a plant-like substance that appeared to be marijuana. . . . Ramos further testified that the marijuana had been packaged for street sale. A search of Dudac’s clothing revealed additional marijuana. . . . The [petitioner’s] two housemates provided the police with statements that the black duffel bag belonged to the [petitioner]. Additionally, Dudac testified at trial that she had seen the [petitioner] place the duffel bag in the closet where it was later found by the police.” State v. Synakorn, supra, 239 Conn. 429-31.

We first address the petitioner’s claim that his appellate counsel provided ineffective assistance by failing to claim that the trial court improperly had denied his motions for a mistrial and a new trial on the basis of prejudicial testimony. Specifically, he argues that Dudac’s mother spontaneously testified that she “didn’t like the fact that my daughter showed me a gun that belonged to [the petitioner] that was stored in our house one time.” The petitioner’s criminal trial counsel, Frank J. Riccio, moved for a mistrial on the ground that the testimony regarding a gun presented a collateral issue before the jury. Riccio further argued that the. prejudice of this statement could not be cured with an instruction.

The court denied the motion for a mistrial. The court then struck the comment regarding the gun from the record and issued a curative instruction to the jury. Additionally, during the charge to the jury, the court instructed the jury that it could not consider evidence that had been stricken from the record. At the outset of the sentencing hearing, the petitioner moved for a new trial on the basis of the prejudicial effect of the stricken testimony regarding a weapon. The court denied this motion, simply stating that it had “looked at all the new trial issues, and I cannot in good conscience see any reason to grant that motion.”

We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal with respect to whether a mistrial or a new trial was warranted as a result of the stricken weapon testimony. Both issues are reviewed by an appellate court with the deferential abuse of discretion standard. See State v. Lynch, 123 Conn. App. 479, 501, 1 A.3d 1254 (2010); State v. Vazquez, 119 Conn. App. 249, 252, 987A.2d 1063 (2010). In this case, the trial court immediately struck the testimony and issued a curative instruction to the jury. Additionally, during the charge, it reminded the jury that it was to disregard any evidence that had been stricken. The strategic decision of Golger and Owens to forgo this weaker appellate claim in favor of concentrating on claims with a greater likelihood of success constituted sound strategy. “Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at a lack of confidence in any one [issue] .... [Multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” (Internal quotation marks omitted.) Watson v. Commissioner of Correction, supra, 111 Conn. App. 169.

We now address the petitioner’s claim that his appellate attorneys provided ineffective assistance of counsel by failing to raise an insufficient evidence claim with respect to the two cocaine charges. Specifically, he argues that there was insufficient evidence to prove constructive possession of the cocaine found in the shared apartment.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical ... to conclude that a basic fact or an inferred fact is true, the [fact finder] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. ...

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Pettigrew, 124 Conn. App. 9, 30-31, 3 A.3d 148 (2010).

The petitioner argues that the evidence at trial failed to establish that he had constructive possession of the cocaine. We disagree. There was evidence that Lay informed the police that the drugs found in the apartment belonged to the petitioner. Dudac testified that the petitioner used a black duffel bag and had placed it in the closet. On several occasions, she observed the petitioner take the bag out with him and bring it back to the closet when he returned. The police officers located the cocaine in this bag.

“To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it. . . . Under the doctrine of nonexclusive possession, [w]here the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . [Although] mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.” (Citation omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 78, 993 A.2d 970 (2010).

In the present case, the testimony of Lay and Dudac provide the necessary “other pieces of evidence,” aside from the bag’s presence in the apartment, to establish the petitioner’s dominion and control over the bag containing cocaine. Given our deferential review over claims that the evidence was insufficient to sustain the petitioner’s conviction, we cannot conclude that, under these facts and circumstances, the failure to raise this claim amounted to ineffective assistance of counsel. “While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue.” (Internal quotation marks omitted.) Moore v. Commissioner of Correction, 119 Conn. App. 530, 543, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).

Having reviewed the record, and for the reasons set forth previously, we conclude that the petitioner failed to establish that the issues he has raised are debatable among jurists of reason, that a court could have resolved them in a different manner or that the questions he has raised are adequate to deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Following a sentence review board hearing, the petitioner’s total effective sentence was reduced from thirty years to twenty-five years.

       See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       The court stated: “Ladies and gentlemen, when we began, I had an occasion to talk to you about striking things from the record and you not considering things that may be said even though you’ve heard them as part of your decision-making process, and we have just arrived at that particular position. There was some comment about a gun. I’m going to ask you to please disregard that. I am striking it from the record, and I’m asking you not to consider that in any part of your decision-making process. You’ve heard it, but you’re going to eliminate it. Okay? It is very important in all cases that if a trial is to be proper and is to go through properly and justly that we follow the rules of evidence. They’re very clear and they’re very important. I must ask you to do that. Thank you.”

       Specifically, the court instructed: “Now, in the trial of this case, there were some objections and rulings on evidence, and there were exceptions and there were motions to strike. You are to consider only the evidence that was admitted, and if some evidence that was given was stricken or some evidence offered and refused, you must not consider it. You may not draw inferences from it. It means that I have decided that the stricken or refused materials should play no part in your decision-making process. So, don’t speculate on what the answer might be. Erase it from your minds.”

       For these reasons, we also conclude that the petitioner’s claim that his appellate counsel on direct appeal should have challenged the denial of his motion for a judgment of acquittal is without merit.


author: HENNESSY, J.

text:
    RONALD HALL v. COMMISSIONER OF CORRECTION
    (AC 31377)
    DiPentima, C. J., and Lavine and Hennessy, Js.

      Argued September 3
    officially released November 2, 2010

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

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Ronald Hall, appeals from the judgment of the habeas court following its denial of his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal, and improperly denied his amended petition for a writ of habeas corpus by concluding that he had received effective assistance from his trial counsel and that his guilty plea was voluntary, knowing and intelligent. We are not persuaded that the court abused its discretion by denying the petition for certification to appeal. We therefore dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. On January 24, 2006, in accordance with a plea agreement, the petitioner pleaded guilty to one count of possession of narcotics with intent to sell in violation of General Statutes § 2 la-278 (b), and, under the Alford doctrine, to one count of assault in the second degree in violation of General Statutes § 53a-60. During the plea canvass, the petitioner affirmed that he was satisfied with his trial counsel’s legal representation and that he had spoken with his trial counsel about the plea agreement. On February 24, 2006, in accordance with the plea agreement, the petitioner received a total effective sentence of seven and one-half years of incarceration with a five year mandatory minimum to serve. The petitioner never challenged the validity of his plea on direct appeal.

On April 9, 2009, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. Specifically, the petitioner alleged that his trial counsel rendered ineffective assistance by failing to advise him, before he pleaded guilty, that he would not be eligible for parole until he had served 85 percent of his sentence.

The habeas trial commenced on July 16, 2009. During those proceedings, the petitioner testified that it was his understanding that by entering into the plea agreement, he would be eligible for parole after he had served 50 percent of his sentence. Both the petitioner and his trial counsel, however, testified that they did not recall discussing the issue of parole eligibility. The petitioner also testified that he would not have entered into the plea agreement if he had known that he would not be eligible for parole until he had served 85 percent of his sentence. Later that same day, the habeas court rendered judgment denying the petitioner’s amended petition for a writ of habeas corpus. The petitioner then sought, and was denied, a petition for certification to appeal from the judgment of the habeas court. This appeal followed. Additional facts relevant to the petitioner’s appeal will be set forth as necessary.

We consider the petitioner’s claim that the habeas court improperly denied his petition for certification to appeal. “The standard of review is well settled. When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion. . . . [I]f the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . We examine the petitioner’s underlying claim ... to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Citations omitted; internal quotation marks omitted.) Lopez v. Commissioner of Correction, 119 Conn. App. 606, 610-11, 988 A.2d 901, cert. denied, 296 Conn. 920, 991 A.2d 565 (2010).

The petitioner first contends that the habeas court improperly rejected his claim of ineffective assistance of counsel. Specifically, the petitioner contends that his defense was prejudiced due to his trial counsel's failure to advise him of his parole eligibility under the plea agreement. We are not persuaded.

“[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. ... In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition.” (Emphasis in original; internal quotation marks omitted.) Gudino v. Commissioner of Correction, 123 Conn. App. 719, 723-24, 3 A.3d 134 (2010).

With this standard in mind, we conclude that the habeas court correctly determined that the petitioner did not prove that his defense was prejudiced by his trial counsel’s failure to advise him regarding his parole eligibility. The court found that “[t]he petitioner certainly was facing serious charges .... The petitioner . . . pursuant to a plea agreement . . . was to receive a total sentence of seven and one-half years to serve with a five year minimum mandatory on all of the charges. It is clear, crystal clear, that [the petitioner’s trial counsel] did not misadvise petitioner as to his parole eligibility. While there’s no dispute as to whether there was a discussion of parole eligibility between [the petitioner’s trial counsel] and the petitioner, the sole evidence on that point is testimony by the petitioner, which is uncontradicted except by [the petitioner’s trial counsel] in regard to what his normal practice is, and the petitioner made it quite clear in his testimony that there was no discussion regarding parole eligibility in the counseling that led up to the decision to accept the plea agreement. It’s clear, then, that the issue of parole eligibility did not play a part, certainly was not the centerpiece of any plea agreement that the petitioner entered into with the state. . . . [While] it may well be a better practice to ensure that clients understand as much as possible about parole eligibility . . . there’s been no evidence cited in the form of expert testimony or no cases cited to the effect that an attorney is required to advise the client regarding parole eligibility. Consequently, this court cannot find that the failure to do so renders what is otherwise good representation unconstitutional. ”

Our review of the record supports the habeas court’s factual findings and its conclusion that the petitioner’s defense was not prejudiced by his trial counsel’s failure to advise him regarding his parole eligibility. The petitioner has therefore failed to satisfy the prejudice prong of the Strickland-Hill test.

The petitioner next contends that his trial counsel’s failure to advise him regarding his parole eligibility renders his plea invalid as it was not entered intelligently, voluntarily and knowingly. The petitioner, relying on Hernandez v. Commissioner of Correction, 82 Conn. App. 701, 846 A.2d 889 (2004), argues that his trial counsel’s failure to advise him regarding his parole eligibility is the equivalent of gross misadvice and that the habeas court should have granted his amended petition for habeas corpus on that basis. We disagree.

Before addressing the defendant’s argument, we review the law governing guilty pleas. “Guilty pleas must be intelligent, voluntary and knowing. ... A defendant must be aware of all direct consequences of his plea.” (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 120 Conn. App. 412, 418, 991 A.2d 705, cert. denied, 297 Conn. 915, 996 A.2d 279 (2010). “[T]he scope of direct consequences is very narrow. ... In Connecticut, the direct consequences of a defendant’s plea include only the mandatory minimum and maximum possible sentences . . . the maximum possible consecutive sentence . . . the possibility of additional punishment imposed because of previous conviction(s) . . . and the fact that the particular offense does not permit a sentence to be suspended. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” (Internal quotation marks omitted.) Toles v. Commissioner of Correction, 113 Conn. App. 717, 727 n.5, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009); see also Practice Book § 39-19.

It is true, as the petitioner contends, that where trial counsel has rendered gross misadvice on the issue of parole eligibility, and a defendant has relied on that misadvice in entering a guilty plea, the plea is invalid as it was neither voluntary nor intelligent. See Hernandez v. Commissioner of Correction, supra, 82 Conn. App. 709. The petitioner’s reliance on Hernandez, however, is misplaced.

In Hernandez, this court concluded that the petitioner’s plea was not intelligent, voluntary and knowing. Id. The court based its conclusion, in part, on the habeas court’s determination that the petitioner had demonstrated that his trial counsel’s advice regarding his parole eligibility was deficient. Id. During the habeas proceedings, the petitioner had testified that his trial counsel had advised him that he would be eligible for parole after he had served 50 percent of his sentence. Id., 703. The petitioner’s testimony was corroborated by the testimony of his trial counsel. Id. The court also based its conclusion on its determination that the petitioner, but for his trial counsel’s deficiencies, would not have entered a plea of nolo contendere. Id., 709. During the habeas proceedings, the petitioner testified that the only reason that he accepted the plea agreement was that he believed that he would be eligible for parole, and that had he known that he would not be eligible for parole, he would not have entered a plea of nolo contendere and would have proceeded to trial. Id., 703.

Hernandez is readily distinguishable from the present case. Here, the habeas court explicitly found that the “[petitioner’s trial counsel] did not misadvise petitioner as to his parole eligibility.” Indeed, both the petitioner and his trial counsel testified that they could not recall ever discussing the petitioner’s parole eligibility. We agree, therefore, with the habeas court’s finding that the issue of parole eligibility did not play a part, certainly not a substantial part, in the petitioner’s decision to enter into the plea agreement. It is for that reason that we conclude that the court correctly determined that the petitioner’s plea was not rendered unintelligent, involuntary and unknowing due to the alleged ineffective assistance of his trial counsel.

Therefore, upon our examination of the record and the court’s resolution of the issues presented in the amended habeas petition, we are not persuaded that the court abused its discretion by denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues differently, or that the questions presented warrant encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994); Lopez v. Commissioner of Correction, supra, 119 Conn. App. 614.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner also claims that the defense of procedural default by the respondent, the commissioner of correction, was unavailing. The respondent, in his return to the petitioner’s amended petition for a writ of habeas corpus, asserted the defense of procedural default, claiming that the petitioner could have raised the issues of the ineffective assistance of his trial counsel and the validity of the guilty plea at the time of sentencing or on direct appeal. The habeas court did not expressly address the issue of procedural default in its oral decision and decided the amended petition for habeas corpus on the merits.

       See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


author: PER CURIAM.

text:
    IN RE BRIAN W. ET AL.

    (AC 31643)
    Bishop, Lavine and Dupont, Js.
    Argued September 14
    officially released November 2, 2010

      Maria W., pro se, and Allen R. W., Sr., pro se, the appellants (respondent paternal grandparents).

      Allen R W., Jr., pro se, the appellant (respondent father).

      David B. Rozwaski, for the appellee (petitioner mother).

      Gloria L. Harris, for the minor children.

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

   Opinion

PER CURIAM.

The pro se respondents, the paternal grandparents of the minor children Brian W. and L. W., appeal from the judgments of the trial court removing the respondent grandparents as guardians and reinstating the guardianship of the petitioner, the mother of the children. On appeal, the respondents claim that the trial court improperly concluded that (1) the petitioner resolved the factors that resulted in her prior removal as guardian and (2) that transferring custody to the petitioner was in the best interests of the children. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our review of the respondents’ claims. The petitioner, while in a relationship with the children’s father, resided with the respondents and gave birth to Brian W. in mid-2003 and L. W. in late 2004. She moved out of the home without the children in June, 2005. In July, 2005, the respondents petitioned the Probate Court for temporary custody of the children. In January, 2006, with the consent of the petitioner and the father, both parents were removed as the guardians of the children, and the respondents were appointed as guardians. Although the petitioner consented to her removal, the primary factors resulting in her removal were her lack of stable housing and employment and her unwillingness to accept fully her parental responsibilities.

On May 27, 2008, the petitioner filed a petition with the Probate Court to be reinstated as guardian. After an evidentiary hearing on November 14, 2008, at which the petitioner, the respondent grandmother and a number of professionals who worked with the family testified, the Probate Court concluded that the petitioner had resolved satisfactorily the factors that had resulted in her removal as guardian and that transferring custody to the petitioner was in the best interests of the children. By memorandum of decision dated December 5, 2008, the Probate Court ordered that the reinstatement be granted, effective as of a date to be determined by the court after a further hearing scheduled for December 23, 2008. Thereafter, the respondents commenced an appeal from the decision of the Probate Court to the Superior Court for Juvenile Matters.

On December 23,2008, the hearing before the Probate Court went forward as scheduled, but neither the respondents nor the father attended, as apparently they were under the misapprehension that the appeal would stay the proceedings automatically. On the basis of the recommendations of the professionals present and on the petitioner’s testimony, the court reinstated the petitioner as the sole guardian of the children effective immediately. On December 23, 2008, after the hearing, the petitioner, accompanied by her attorney and with the assistance of the police department, went to the respondents’ house and took physical custody of the children. The respondents and the father have not seen the children since that date.

Because no transcript was made of the Probate Court hearing, in considering the respondents’ appeal, the Superior Court found it necessary to conduct a trial de novo, which it did on October 16 and 19, 2009. The trial court heard the testimony of Laura Pedersen, a therapist from the Klingberg Family Centers, Kareen Malcolm of the department of children and families, Lori. DeLeo, an officer of the Probate Court, and Suzette Farrar, the guardian ad litem appointed for the children. The court also heard the testimony of the respondent grandmother and a paternal great aunt. The court considered numerous exhibits and took judicial notice of the underlying probate decision.

The court made the following factual findings on the basis of the testimony and evidence presented. The petitioner had developed a strong bond with the children through supervised and unsupervised visitation between January, 2006, and November, 2008. By November, 2008, the petitioner had been able to maintain stable housing and employment for more than a year. On December 23, 2008, the children moved into the apartment that the petitioner shared with Pedro C. and their daughter. See footnote 3 of this opinion. No concerns were reported by the professionals who worked with the family thereafter. See footnote 6 of this opinion. The court concluded that the petitioner had addressed satisfactorily the housing and employment issues and demonstrated a willingness to accept her parental responsibilities.

The court also concluded that reinstating guardianship with the petitioner was in the best interests of the children because it would best foster the children’s interest in sustained growth, development, well-being, and in the continuity and stability of their environment. The court noted the respondents’ concerns regarding the petitioner but concluded that they did not warrant a finding that the petitioner’s reinstatement was not in the children’s best interests. Accordingly, the court granted the petitioner’s petition and removed the respondents as guardians. This appeal followed.

General Statutes § 45a-611 (a) and (b) provide that, in order to reinstate the parent as guardian, the court must find that the factors that resulted in the removal of the parent have been resolved satisfactorily and that it is in the best interests of the children to do so. In this appeal, the respondents claim that the trial court improperly concluded that the petitioner had resolved those factors and that transferring custody to the petitioner was in the best interests of the children.

“The award of the custody of a minor child is a matter within the sound discretion of the trial court. . . . We review the award to determine whether that discretion has been abused and whether the trial court, in the exercise of its discretion, has overlooked or misapplied some established principle of pertinent law.” (Citations omitted; internal quotation marks omitted.) In re Helen B., 50 Conn. App. 818, 827-28, 719 A.2d 907 (1998). “When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the decision . . . are clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) In re Anthony E., 96 Conn. App. 414, 418, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006).

The respondents have provided this court a detailed factual record concerning their care for the children and the behavior of the petitioner, as well as of the proceedings before both the Probate Court and the Superior Court. A careful review of the documents, transcripts and record before the Superior Court demonstrates that this evidence was available to and considered by that court. The respondent grandmother testified extensively before that court and took the lead in prosecuting the trial de novo as a self-represented party, including cross-examining the petitioner’s witnesses. The trial court credited the testimony of the professionals, who had various opportunities to work with the petitioner and to interact with the children.

In light of this record, we cannot conclude that the trial court’s findings were clearly erroneous. There was ample evidence in the record to support a finding that the factors that resulted in the petitioner’s removal had been resolved satisfactorily and that reinstating her as guardian was in the best interests of the children. Nor can we conclude that the court abused its discretion in granting the petitioner’s petition and removing the respondents as guardians, thereby transferring custody of the children to the petitioner.

The judgments are affirmed.

       The father of the children is nominally listed as an appellant and also appears as a self-represented party. He did not argue before this court on his behalf. On appeal, the respondent grandparents seek: “Stay of the court order of November 13, 200[9], and return the children to the custody and care of [the respondent grandparents] pending further review of appeal . . . [or] [rjeversal of the court’s order of November 13, 200[9], and return the minor children to the custody and care of [the respondent grandparents].” The father, who resides with his parents, withdrew his petition to be reinstated as guardian. Accordingly, for the purposes of this opinion, we refer to the paternal grandparents as the respondents.

       The respondents also claim that witnesses wilfully conspired to testify falsely during all proceedings to remove them as guardians. They challenge the credibility of the petitioner’s witnesses, particularly that of the Probate Court officer. As an appellate court, “[w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) In re Justice V., 111 Conn. App. 500, 513, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009). The trial court found the challenged witnesses to be credible. Accordingly, we defer to the trial court’s finding regarding this claim.

       At some point in 2006 or 2007, the petitioner began to reside with Pedro C., and the two had a daughter.

       Because the respondents and the father were not present at the December 23, 2008 hearing and did not request visitation, the court did not order visitation. The Probate Court, however, also ruled that any party entitled to visitation could, without prejudice, request an order of visitation in the future.

       See In re Jessica M., 71 Conn. App. 417, 421, 802 A.2d 197 (2002).

       The court credited the testimony of these professionals. In May and June, 2009, Pedersen conducted a diagnostic assessment of the petitioner and children and concluded that the children were doing well in her care and that therapy was not required. Malcolm concluded that the petitioner had completed all the necessary steps to be restored as guardian of the children and that it was in their best interests to remain in her care. DeLeo followed the family for six months after the transfer of custody and reported no concerns. Farrar concluded that even though the petitioner had missed some visits, she had developed a strong bond with the children.
      The court noted that the family, including the petitioner, the children, Pedro C., and their daughter, had recently moved to Puerto Rico following unsubstantiated reports of abuse made to the department of children and families. The petitioner was unemployed and receiving food stamps there. This finding notwithstanding, the court emphasized that the petitioner had maintained suitable employment and housing for more than a year before the children were returned to her care, that she had stable housing and employment when the children were returned to her care in December, 2008, and that she maintained the same apartment until the move to Puerto Rico. The court found that the family was able to meet its daily expenses and that the children were reportedly doing well since the move.

       General Statutes § 45a-611 provides in relevant part: “(a) Any parent who has been removed as the guardian of the person of a minor may apply to the court of probate which removed him or her for reinstatement as the guardian of the person of the minor, if in his or her opinion the factors which resulted in removal have been resolved satisfactorily.
      “(b) In the case of a parent who seeks reinstatement, the court shall hold a hearing following notice to the guardian, to the parent or parents and to the minor, if over twelve years of age, as provided in section 45a-609. If the court determines that the factors which resulted in the removal of the parent have been resolved satisfactorily, the court may remove the guardian and reinstate the parent as guardian of the person of the minor, if it determines that it is in the best interests of the minor to do so. At the request of a parent, guardian, counsel or guardian ad litem representing one of the parties, filed within thirty days of the decree, the court shall make findings of fact to support its conclusions. . . .”

       We note that the trial court, in its memorandum of decision, noted that the respondent grandmother conducted herself admirably at the trial. The respondent grandmother similarly conducted herself in her argument before this court. As the trial court also noted, the respondent grandparents should be commended for stepping forward to act as guardians of the children and for caring so much for their welfare.
      This case presented a difficult decision for the trial court. It is not always possible for grandparents and parents to share custody of their grandchildren or children. The court was sensitive to the fact that whether the respondents were awarded custody of the children or the petitioner was awarded custody of the children, disharmony could result. Based on the evidence before it, however, the court’s decision was legally appropriate.