author: Peters, C. J.

text:
    Francis Daley et al. v. City of Hartford
    (13781)
    Peters, C. J., Callahan, Covello, Hull and F. X. Hennessy, Js.
    Argued February 27
    decision released May 8, 1990

      H. Maria Cone, senior assistant corporation counsel, with whom, on the brief, was Richard M. Cosgrove, senior deputy corporation counsel, for the appellant (defendant).

      Joseph C. Morelli, for the appellees (plaintiffs).
   Peters, C. J.

The dispositive issue in this appeal is whether a court has subject matter jurisdiction to entertain a contract action arising out of a provision of a collective bargaining agreement that has not been grieved when the parties have exhausted applicable grievance procedures relating to a different provision of the agreement. The plaintiff police officers, having been bypassed for promotion to the rank of lieutenant in the police department of the defendant city of Hartford, brought a breach of contract action against the defendant alleging that the promotional process violated the collective bargaining agreement that had been negotiated between their union and the defendant.

The lengthy procedural background of this action began when the trial court, O’Neill, J., directed a verdict in favor of the defendant and the plaintiffs appealed. The Appellate Court, in Daley v. Gaitor, 16 Conn. App. 379, 390, 547 A.2d 1375, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988), determined that the interpretation of the collective bargaining agreement was a question of fact that should be resolved by a jury in a new trial. Upon remand to the trial court, the defendant unsuccessfully moved to dismiss the case for lack of subject matter jurisdiction, alleging, inter alia, that the plaintiffs, as individual union members, lacked standing to enforce the collective bargaining agreement and, alternatively, that they had failed to exhaust their contractual remedies. The jury trial resulted in a verdict in favor of the plaintiffs. Denying the defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict, the trial court, Thompson, J., rendered judgment for the plaintiffs. The defendant appealed to the Appellate Court and we transferred the appeal to ourselves pursuant to Practice Book § 4023. We find error.

The history of this case depicts a regrettably convoluted “nine year saga.” For present purposes, it is necessary only to recite the factual background relating to the specific grievance filed on behalf of the plaintiffs by their union and the inferences from those grievance procedures that the trial court drew upon remand from the Appellate Court.

The plaintiffs are present and former sergeants in the Hartford police department who applied for the position of lieutenant in 1981. Each had attained a score of at least seventy-six on the written examination, the minimum necessary to proceed to the oral examination. Subsequent evaluation of the written test results, however, revealed an adverse impact on minority candidates as measured by the federal Uniform Guidelines on Employee Selection, 29 C.F.R. § 1067 et seq. The defendant, in accordance with 29 C.F.R. § 1067.66 (2), which provides for modification of employee selection procedures in order to alleviate any discriminatory impact, voluntarily altered its previously established eligibility criteria and permitted any sergeant who had taken the written examination to proceed to the oral evaluation. Thereafter, those individuals who had completed both phases of this bifurcated promotional process were ranked. Daley v. Gaitor, supra, 381. As a result, three individuals who, in accordance with the originally established promotional guidelines, would not have proceeded to the oral examination, were ultimately promoted to lieutenant in lieu of the plaintiffs. Id., 382.

Because of the provisions of General Statutes §§ 7-467 through 7-477, the collective bargaining agreement between the International Brotherhood of Police Officers, Local 308 (union) and the defendant governed the plaintiffs’ employment relationship with the defendant. Section 3.3 of the collective bargaining agreement incorporated the defendant’s personnel rules and regulations. Article II of the agreement provided a four step procedure for the resolution of employment grievances and disputes. The agreement authorized any individual employee to pursue a claim through the first three steps of the grievance procedure, but reserved to the union the discretion to determine whether a grievance would be pursued to the fourth step, the state board of mediation and arbitration. Pursuant to the fourth step, § 2.1, the state board of mediation and arbitration “shall be limited to the express terms of the contract and shall not have the power to modify, amend or delete any terms or provisions of the Agreement,” and its decision “shall be final and binding on the parties.”

Although the promotional process that the plaintiffs challenge occurred in 1981, it was not until 1983 that the plaintiffs, with the support of their union, filed a grievance with the defendant. In their grievance, the plaintiffs specifically alleged violations of the “no discrimination” and “prior benefits and practices” sections of the contract, §§1.7 and 3.4 respectively. Because the collective bargaining agreement expressly required any grievance to be filed within seven days from the date of the alleged violation, the defendant consistently denied the grievance at steps one, two and three of the grievance procedure, on the ground that the grievance was untimely and therefore nonarbitrable. In addition, the defendant maintained, at each juncture, that “the [sjubject of the grievance [was] specifically excluded from [the] collective bargaining [agreement] and therefore the grievance procedure . ”

In accordance with the terms of the collective bargaining agreement, the union filed a fourth step grievanee with the state board of mediation and arbitration. On May 9,1984, the state board of mediation and arbitration, acting upon the terms of the parties’ stipulation to that effect, issued an award that the grievance was nonarbitrable. The parties’ stipulation provided specifically that (1) “[t]he City has raised the issue of arbitrability with regard to Case #8384-A-274 currently before the Connecticut State Board of Mediation and Arbitration”; (2) “[t]he Union hereby concedes without prejudice or precedent that the issue in Case #8384-A-274 is not arbitrable”; and (3) “[t]he parties agree and jointly request that items 1 and 2 above be issued as a stipulated award by the Connecticut State Board of Mediation and Arbitration for Case #8384-A-274.”

Because this stipulation of the nonarbitrability of the union’s grievance forms the fulcrum upon which the threshold question of subject matter jurisdiction rests, it is significant to note what it left unstated. The stipulation does not reveal the underlying basis for the parties’ agreement that the grievance was nonarbitrable. The parties now disagree about the significance of that omission. There can be no dispute, however, about the fact that § 3.3, the provision delineating applicable personnel rules and regulations, was not one of the specific terms of the collective bargaining agreement submitted by the parties for arbitration. Moreover, the union has never grieved a violation of § 3.3 of the collective bargaining agreement on behalf of the present plaintiffs.

The plaintiffs’ first trial proceeded on a theory of breach of contract, not specifically relying upon § 3.3 as a basis for the defendant’s liability, which was rejected by the Appellate Court. Indeed, the collective bargaining agreement was never introduced into evidence at the first trial. The Appellate Court, nonetheless, held that whether the collective bargaining agreement mandated the use of a particular promotional process presented a question of fact for the jury to determine, and thereupon remanded the case for a new trial. Daley v. Gaitor, supra, 388-90. When, in accordance with this remand, the plaintiffs’ contract action at the retrial went forward on the theory that the defendant’s denial of the promotions sought by the plaintiffs constituted a violation of § 3.3, the defendant moved to dismiss the action for lack of subject matter jurisdiction because of the plaintiffs’ failure specifically to grieve § 3.3 of the collective bargaining agreement.

The trial court denied the defendant’s motion to dismiss for lack of subject matter jurisdiction. The court held that “the substance of the plaintiffs’ claim has been consistent from the outset and the City certainly was aware of the nature of the claim being asserted. Therefore, it is reasonable to conclude that the [defendant’s] position was that the substance of the plaintiffs’ claims, as opposed to the section of the contract upon which they relied, was not subject to arbitration.” The court went on to find that because the plaintiffs’ attempts to exhaust the exclusive grievance and arbitration procedures established by the collective bargaining agreement before resorting to the courts “were met with a claim by the [defendant] that [the plaintiffs’ grievance] was not one which was subject to the arbitration procedures[, it] would appear that at the very least, the [defendant was] estopped from making a claim to the contrary in an effort to deny the plaintiffs’ standing to bring [a] lawsuit.” The court thereafter allowed the plaintiffs to present their case to a jury and rendered judgment in accordance with a jury verdict in their behalf.

The defendant has renewed its jurisdictional claim in the present appeal. Relying on the proposition that the parties’ submission defines and limits the scope of arbitration by specifically delineating the issues to be decided; North Haven Assn. of Educational Support Staff v. Board of Education, 209 Conn. 280, 283, 550 A.2d 1077 (1988); Board of Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d 553 (1985); the defendant maintains that the court committed error by enlarging the submissions stipulated as having been nonarbitrable to include § 3.3, when that provision of the collective bargaining agreement had not previously been grieved. Moreover, the defendant contends that, because, “as a matter of state law, parties to a collective bargaining agreement must attempt to exhaust the exclusive grievance and arbitration procedures established in their agreement before resorting to court”; School Administrators Assn. v. Dow, 200 Conn. 376, 382, 511 A.2d 1012 (1986); the plaintiffs’ failure to grieve § 3.3 of the collective bargaining agreement deprived the trial court of subject matter jurisdiction to hear the case on the breach of contract theory that the plaintiffs advanced at retrial.

The plaintiffs concede both their failure specifically to grieve § 3.3 of the collective bargaining agreement and their reliance on this provision in the retrial of their breach of contract claim. They nonetheless contend that the nonarbitrability stipulation should necessarily excuse any technical failure to exhaust their contractual remedies because, by the defendant’s own admission, the underlying subject matter jurisdiction of the grievance was nonarbitrable. The plaintiffs, therefore, assert that the defendant, having agreed to the stipulation of the nonarbitrability of the grievances they did file, must be barred either as a matter of law or on the ground of estoppel from belatedly raising jurisdictional obstacles to this action. We are unpersuaded by the plaintiffs’ contention.

It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the" defendant and the plaintiffs’ union. Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Republic Steel Corporation v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 500, 522 A.2d 264 (1987); School Administrators Assn. v. Dow, supra, 381-82. The threshold question before us is whether, in this case, the defendant’s stipulation of nonarbitrability may be construed as sufficiently expansive to excuse the plaintiffs’ failure to exhaust their contractual remedies with respect to § 3.3 of the collective bargaining agreement. Well established principles governing the arbitration of labor disputes, however, counsel against such an expansive interpretation.

In the same way that the provisions of the collective bargaining agreement strictly limit the authority to arbitrate; North Haven Assn. of Educational Support Staff v. Board of Education, supra, 283; Board of Education v. AFSCME, supra, 271; Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976); so the agreement between the parties necessarily limits the scope of judicial review. Hartford v. Local 308, 171 Conn. 420, 424, 370 A.2d 996 (1976); Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279 (1974); see also Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, 15 Conn. App. 332, 333, 544 A.2d 256 (1988). Just as, according to the general rule, “ ‘[a] challenge of the arbitrator’s authority is limited to a comparison of the award to the submission’ll;] Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981)”; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338, 555 A.2d 406 (1989); so too is the court’s authority in reviewing an arbitration award confined to the issues submitted. The arbitrator may not exceed his or her authority by making an award beyond the scope of the parties’ submission; American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186, 530 A.2d 171 (1987); Board of Education v. AFSCME, supra; Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 563, 457 A.2d 310 (1983); nor may the court fail to conform its rulings to the scope of the parties’ submission. “The submission, then, defines the scope of the entire arbitration proceeding by specifically delineating the issue to be decided. Naugatuck v. AFSCME, 190 Conn. 323, 326, 460 A.2d 1285 (1983).” Board of Education v. AFSCME, supra, 271; North Haven Assn. of Educational Support Staff v. Board of Education, supra, 283.

Accordingly, to ascertain whether the court erred in denying the defendant’s motion to dismiss, it is the specific submission that resulted in the arbitrator’s award of the stipulation of nonarbitrability that must control our disposition of the jurisdictional claim of error. In their grievance alleging that the defendant’s promotional process constituted a breach of their union’s collective bargaining agreement with the defendant, the plaintiffs expressly limited their submission to violations of §§ 1.7 and 3.4. The issues to be decided by arbitration, therefore, as specifically delineated by that submission, were whether the defendant’s promotional process violated the “no discrimination” and “prior benefits and practices” sections of the collective bargaining agreement. Having exercised their discretion not to grieve a § 3.3 claim, the plaintiffs are bound by their decision in that regard. A submission of two sections of a collective bargaining agreement for arbitration does not automatically encompass other sections not previously grieved.

The plaintiffs suggest, however, that, whatever the scope of the arbitration might originally have been, the effect of the stipulated agreement of nonarbitrability was to relieve them of any further obligation to exhaust contractual remedies concerning provisions of the collective bargaining agreement, such as § 3.3, that are inferentially related to those that had been grieved. In pressing this contention, the plaintiffs maintain that we should focus on the omission in the stipulation of the grounds upon which the parties agreed that the grievance was nonarbitrable, rather than upon the submission itself. The plaintiffs assert that the gravamen of their grievances was their complaint about the fairness of the defendant’s promotional process, rather than the applicability of particular provisions of the collective bargaining agreement. In the light of this shared understanding about what was at issue, and the fact that the present trial concerned the merits of this same underlying issue, the plaintiffs argue that any ambiguity in the stipulation of nonarbitrability should be resolved in favor of an expansive interpretation rendering the plaintiffs compliant with the exhaustion requirement.

This argument might have some merit were it not for the fact, emphasized by the defendant, that the untimely filing of the plaintiffs’ grievance presented the primary procedural impediment to the arbitrability of the grievance. The plaintiffs do not contend that the filing of an untimely grievance serves as compliance with the exhaustion requirement. The present record compels the conclusion that the stipulation of nonarbitrability arose out of the plaintiffs’ own delay in pursuing their grievance rather than out of an agreement about the merits of their underlying controversy with the defendant. The trial court therefore improperly relied upon the nonarbitrability stipulation as a basis for enlarging the terms of the submission and as an excuse for the plaintiffs’ failure to exhaust their contractual remedies with respect to § 3.3.

Our conclusion that the plaintiffs’ failure specifically to grieve § 3.3 would ordinarily deprive the trial court of subject matter jurisdiction does not, however, end their appeal. The plaintiffs maintain, in the alternative, that application of the principles of finality and law of the case requires us to hold that, in this case, the defendant has become estopped to avail itself of this jurisdictional claim of error. Although the plaintiffs concede that subject matter jurisdiction may be raised at any time and the lack thereof can neither be waived; Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984); Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979); nor conferred by consent; Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985); they assert that the defendant’s jurisdictional claim must fall to “[t]he modern rule on conclusiveness of determinations of subject matter jurisdiction [that] gives finality substantially greater weight than validity .. . .” 1 Restatement (Second), Judgments § 12, comment a.

The plaintiffs assert that because the defendant failed to utilize its full opportunity to litigate its jurisdictional claim prior to the Appellate Court’s remand for a new trial, its challenge to the exercise of the court’s jurisdiction upon remand functionally amounts to a collateral attack upon the Appellate Court’s judgment. Since this court “strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of finality”; Meinket v. Levinson, supra, 113; Vogel v. Vogel, supra; see also Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 200, 544 A.2d 604 (1988); the plaintiffs contend that the defendant has forfeited its right to mount a jurisdictional challenge to the plaintiffs’ cause of action. The plaintiffs further maintain that, given the defendant’s failure to pursue a jurisdictional defense in the original action, or before the Appellate Court, no strong public policy reasons operate to afford the defendant a second opportunity to do so. Moreover, because the mandate of the Appellate Court significantly determined the course to be pursued in the trial court on remand; Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 220, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985); the plaintiffs urge us to hold that the defendant is bound by the law of the case and is therefore estopped from asserting a jurisdictional defense at this late juncture. We disagree that the principles that govern either finality or the law of the case foreclose the defendant’s jurisdictional claim in the circumstances presently before us.

This court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. See Kinney v. State, 213 Conn. 54, 58, 566 A.2d 670 (1989); Castro v. Viera, 207 Conn. 420, 427-30, 541 A.2d 1216 (1988); Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985); Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985). In certain circumstances, we have, however, recognized that this principle of validity must be tempered by the countervailing force of the principle of finality. “The modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal.” Monroe v. Monroe, 177 Conn. 173, 178, 413 A.2d 819, cert. denied, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); Meinket v. Levinson, supra, 114; Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d 1230 (1983); Vogel v. Vogel, supra, 362-63; 1 Restatement (Second), Judgments § 12; F. James & G. Hazard, Civil Procedure (2d Ed. 1977) § 13.16. “[T]he principle of finality rests on the premise that the proceeding had the sanction of law, expressed in the rules of subject matter jurisdiction. As long as the possibility exists of making error in a determination of the question of subject matter jurisdiction, the principles of finality and validity cannot be perfectly accommodated. . . . If the question is decided erroneously, and a judgment is allowed to stand in the face of the fact that the court lacked subject matter jurisdiction, then the principle of validity is compromised. On the other hand, if the judgment remains indefinitely subject to attack for a defect of jurisdiction, then the principle of finality is compromised. The essential problem is therefore one of selecting which of the two principles is to be given the greater emphasis.” 1 Restatement (Second), Judgments § 12, comment a.

The plaintiffs urge us, in this case, to give conclusive weight to the principle of finality. Emphasizing that the defendant failed to pursue a jurisdictional claim in the Appellate Court prior to the remand for retrial, the plaintiffs maintain that a finding of jurisdictional competence must be implied in the Appellate Court’s direction of a new trial. If that direction does not itself constitute a final judgment, they contend that the doctrine of law of the case similarly forecloses the defendant’s jurisdictional claim at this late date. We are unpersuaded.

We decline to view an order remanding a case for a new trial as a final judgment for the purposes of the principle of finality. See State v. Malkowski, 189 Conn. 101, 105, 454 A.2d 275 (1983); cf. Armac Industries, Ltd. v. Citytrust, 203 Conn. 394, 401-403, 405, 525 A.2d 77 (1987). We are equally unpersuaded that the law of the case stands as an obstacle to inquiry into judicial competence to act. “The law of the case . . . is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power.” (Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982); Rosenblit v. Danaher, 206 Conn. 125, 132, 537 A.2d 145 (1988). The present record does not demonstrate that the Appellate Court in fact or in law decided the issue of subject matter jurisdiction. Although the defendant had unsuccessfully moved several times, prior to the Appellate Court’s decision in Daley v. Gaitor, supra, 390, to dismiss the companion case of Daley v. Gaitor, for lack of subject matter jurisdiction, the defendant did not raise subject matter jurisdiction in the appellate tribunal. The failure to raise the issue at that time, while regrettable, may be explained by the nature of the plaintiffs’ appeal and by the absence of any emphasis, by either party, on the legal significance of § 3.3 prior to the decision of the Appellate Court. Accordingly, the defendant brought the matter of subject matter jurisdiction to judicial attention in a timely manner once the issue came on the table because of the agenda set for the retrial by the Appellate Court. Undeniably, both parties upon remand had an adequate opportunity to litigate the claim of subject matter jurisdiction. In our view, this appeal, therefore, represents the first opportunity for an appellate court to rule directly upon the question of subject matter jurisdiction.*

Finally, we note the public policy interest in the settlement of employment relationship disputes through contract grievance-arbitration procedures, as expressed in the legislature’s enactment of the state Labor Management Relations Act, General Statutes §§ 31-101 through 31-lllb, the Municipal Employee Relations Act, General Statutes § 7-467 et seq., and the arbitration statutes, General Statutes §§ 52-408 through 52-424. See Republic Steel Corporation v. Maddox, supra, 652; School Administrators Assn. v. Dow, supra, 381. This interest counsels us to resolve any doubts about the applicability of the law of the case in favor of permitting adjudication of a subject matter jurisdiction claim in this case. See Vaca v. Sipes, supra, 184; 1 Restatement (Second), Judgments § 12, comment d.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other justices concurred.

       The motion to dismiss was first denied by Koletsky, J., because of the defendant’s failure to present evidence to support its factual allegations regarding the exhaustion of remedies. Thereafter, the defendant renewed its jurisdictional claim at trial, with an evidentiary showing, but its motion was again denied by Thompson, J.

       Further background information is contained in Daley v. Gaitor, 16 Conn. App. 379, 547 A.2d 1375 (1988).

       The collective bargaining agreement expressly provided that Article II did not prohibit the defendant from processing a grievance through the entire grievance procedure up to and including arbitration.

       Section 1.7 of the collective bargaining agreement provides: “No Discrimination. The provisions of this Agreement shall be applied equally to all employees in the bargaining unit without discrimination because of age, sex, marital status, race, color, religion, creed, national origin, political affiliation or union membership.”
      Section 3.4 of the collective bargaining agreement provides: “Prior Benefits and Practices. Any job benefits or work practices existing prior to the date of this Agreement, which were the subject of any written memoranda or directives issued by the Chief or his Superiors and which are not specifically provided for or abridged in this Agreement, are hereby protected by this contract. This provision shall not preclude the right of the City Manager to make reasonable changes in such work practices and job benefits, provided that no such change shall be made for the purpose of undermining the Union.”

       In its denial of the third step grievance, the defendant, for the first time, introduced a third ground for nonarbitrability that neither party has raised as an issue in this appeal. With respect to the subject matter of the grievance, the defendant further contended that “[tjhe matter being grieved, the establishment of a passing score on a written examination for Lieutenant, falls under Section 1.5 Management Rights and as such, is not subject to the grievance procedure.”

       Although the plaintiffs’ complaint generally referenced the personnel rules and regulations incorporated into the collective bargaining agreement at § 3.3, and specifically referred to Rule VI, § 3, which provided in pertinent part that “[e]andidates shall be required to attain at least a minimum rating on each part of the test in order to receive a passing grade or be rated on the remaining parts of the test,” the complaint, as originally articulated, did not focus on any specific allegations of the defendant having violated the personnel rules and regulations. Rather, the gravamen of the first trial was the defendant’s alleged breach of its “contractual promise to allow only those who had achieved a minimum passing score of 76 to advance to the second (oral) examination, by allowing all persons who took the written exam to proceed to the oral examination.” The Appellate Court dismissed this claim because “even if the [promotional] pronouncement had represented that the number of people who could take the oral examination would be limited, such representations would not have been sufficiently definite or promissory to support contractual liability. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 214-15, 520 A.2d 217 (1987).” Daley v. Gaitor, 16 Conn. App. 379, 385 n.6, 547 A.2d 1375 (1988).

       The defendant has also renewed on appeal its jurisdictional claim that the plaintiffs lacked standing, as bargaining unit members, to enforce a collective bargaining agreement between the defendant and their union. The trial court, in rejecting this claim, opined that because “the union would be in a situation of conflict of interest in doing so since a successful result in the case at hand necessarily includes taking action which might be prejudicial to the interests of minority officers who are also members of the union ... it would appear only equitable that such employee [whose interests differed from that of the union as a whole] should have standing to enforce his or her rights under a collective bargaining agreement, particularly where the agreement itself does not preclude such action.” The defendant now argues that, in order for the plaintiffs successfully to initiate a breach of contract claim against their employer and to overcome a defense of failure to exhaust their contractual remedies, they must prove that the union breached its duty of fair representation in its handling of the employee grievance. The failure to allege the breach of the duty of fair representation by the union, the defendant asserts, is fatal to the plaintiffs’ complaint. Moreover, the defendant argues that, in view of the exclusive nature of the grievance procedure articulated in the collective bargaining agreement and the express reservation to the union alone of the right of access to the final step of the grievance process, the state board of mediation and arbitration, the trial court erred in finding that the agreement does not preclude the plaintiffs as employees from initiating an action against their employer. Given our conclusion that the plaintiffs’ failure specifically to grieve § 3.3 deprives the court of subject matter jurisdiction, it is unnecessary to address this alternate jurisdictional claim of error. We note only that the union’s pursuit of this same claim, brought pursuant to the “no discrimination” and “prior benefits and practices” sections of the contract, throughout the entire four step grievance process, weakens the trial court’s finding that the union could not adequately protect the plaintiffs’ interests because of the potential conflict of interest among its members that might result should the plaintiffs be successful.
      On appeal, the defendant has also raised an insufficiency of the evidence claim. Given our disposition of the threshold question of subject matter jurisdiction, however, it is unnecessary to review this alternate claim of error.

       The plaintiffs alternatively contend that General Statutes § 7-474 (g) precluded their submission of § 3.3 for arbitration, and thus their failure specifically to grieve that section of the collective bargaining agreement is not jurisdictionally fatal. In promoting this contention, the plaintiffs would have us limit ourselves to that provision of § 7-474 (g), which states that “[t]he conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists . . . shall not be subject to collective bargaining . . . .” We cannot overlook, however, the additional statutory directive provided by § 7-474 (g) that “once the procedures for the promotional process have been established by the municipality, any changes to the process proposed by the municipality concerning [the necessary qualifications for taking a promotional examination] shall be subject to collective bargaining. (Emphasis added.) The gravamen of the plaintiffs’ complaint concerns the fairness of the defendant’s subsequent changes to the established qualifications necessary to proceed with the promotional process. We conclude, therefore, that this contention is without merit.

       The record reflects no reason why the plaintiffs might not have additionally submitted § 3.3 for arbitration.

       In Daley v. Gaitor, which had been consolidated with their breach of contract action at the first trial, the plaintiffs additionally had sought an injunction to restrain city officials from administering the oral examination to any police officer who had not scored in the top 50 percent of those who had taken the written examination. The Appellate Court, however, in Daley v. Gaitor, 16 Conn. App. 379, 380-81 n.2, 547 A.2d 1375 (1988), dismissed as moot the plaintiffs’ appeal from the court’s denial of the injunction.

       Even were we to determine, however, that the defendant’s jurisdictional claim was untimely as it had not been explored prior to remand, our resolution of this question would have been no different. Under the restatement guidelines, “[a] subsequent challenge to subject matter jursidiction, when that issue was not actually litigated in the prior action, is authorized only if the litigant can show that ‘the tribunal’s excess of authority was plain or has seriously disturbed the distribution of gpvernmental powers . . . . ’ 1 Restatement (Second), Judgments § 12, comment d; 2 Restatement (Second), Judgments § 69; Vogel v. Vogel, [178 Conn. 358, 362-63, 422 A.2d 271 (1979)].” Meinket v. Levinson, 193 Conn. 110, 114-15, 474 A.2d 454 (1984).


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    In re Barbara J. et al.

    (13735)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued February 28
    decision released May 8, 1990

      Sara R. Martin, for the appellant (respondent).

      Mary-Anne Mulholland, assistant attorney general, with whom, on the brief, was Judith Merrill Earl, assistant attorney general, for the appellee (petitioner).

      Gail S. Kotowski, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.

   Glass, J.

Pursuant to General Statutes § 17-43a (a), the commissioner of the department of children and youth services (DCYS), on April 6, 1988, filed three petitions to terminate the parental rights of Maureen J. to her children, Barbara J., Walter J. and Margaret J. In a bifurcated hearing, the trial court found that the allegations in the petitions had been proven by clear and convincing evidence and that it was in the best interest of each child that the parental rights of the mother be terminated. We find no error.

In its memorandum of decision, the trial court found that the petition pertaining to each child alleged that the reasons for the termination of the mother’s parental rights had existed for not less than one year, and that the mother’s parental rights should be terminated for three of the four grounds specified in § 17-43a (b), namely: (1) that each child had been abandoned by the mother; (2) that each child in a prior proceeding had been found to have been neglected or uncared for, and that the parent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each child, she could assume a responsible position in each child’s life; and (3) that there was no ongoing parent-child relationship.

The birth dates of the children named in the petitions are as follows: Barbara, October 14, 1980; Walter, January 1, 1983; and Margaret, November 21, 1984. The children were committed to DCYS on November 2, 1985, as uncared for and neglected, and the commitment was extended for an eighteen month period on October 22, 1987. The termination of parental rights petitions were filed on April 6,1988. On April 28,1988, counsel for the respondent mother appeared and denied the allegations in each petition. Hearings on the merits of the petitions were held on July 20, 27 and 28,1988. At the hearings, the petitioner presented the testimony of three DCYS treatment workers, Patricia Williamson, Annette Rizzolo and Theresa Polverari, to whom the cases of the children had been successively assigned prior to the filing of the termination petitions. The petitioner also presented the expert testimony of Ellis A. Perlswig, a child psychiatrist. Exhibits included a report containing a psychological evaluation of the family by Perlswig, and four letters written to DCYS by Barbara’s foster mother.

Williamson was the treatment worker from the date of commitment until April, 1986. During that time, the respondent, who had a history of mental illness, began counseling, and a weekly schedule of visitation was established with Barbara at the DCYS office, and with Walter and Margaret at their foster home. In her visits with Barbara, the trial court found that on some occasions the respondent would promise to make a home for her, and on other occasions she would make critical comments about her appearance. These events caused such a disturbance in Barbara that her foster mother could not control her. The respondent did not visit Barbara in December, 1985, and when she resumed visitation with her in January, 1986, Barbara again evidenced control problems. As a result, DCYS requested and obtained a suspension of the respondent’s visits with Barbara for three months beginning on February 14,1986. Barbara began counseling at this time.

Rizzolo was the treatment worker from April, 1986, until August, 1987. She testified that, when she took over, visits with the children were arranged at the office of DCYS. The respondent’s visits with Barbara were reinstated in June, 1986, once per month, and semimonthly with Walter and Margaret. The trial court found that, at these visits, the respondent paid little or no attention to the children. Instead, she spent most of the time talking to the treatment worker. In response to the suggestion of Barbara’s therapist, the respondent’s visitations with Barbara were suspended again in January, 1987, because of Barbara’s disruptive behavior after the visits, which led to her admission to Highland Heights for day treatment. In April, 1987, Barbara’s behavior deteriorated to the point where she was admitted to Highland Heights for in-patient treatment.

In August, 1987, the case was assigned to Polverari. She testified that the respondent’s visits with Barbara continued once per month, and semi-monthly for Walter and Margaret. Polverari provided the respondent with transportation for visitations, although the respondent would not disclose her residence to Polverari. The trial court found that visitations continued reasonably well until November, 1987, when the respondent disappeared and refused to disclose her whereabouts to DCYS. She reappeared in February, 1988, and, thereafter, until the filing of the petitions, had several visits with the children.

The trial court found that, from the date of the commitment to the time of trial, the respondent had lived in a variety of housing accommodations in New Haven. In July, 1985, she lived on Davenport Avenue. In November, 1985, she lived at a family shelter on Sylvan Avenue. Thereafter, she moved to Read Street. When she was evicted from there, she moved to Downing Street in the late spring of 1986. She lived at the YWCA shelter in the winter of 1986-87, and, in the summer of 1987, she moved to Hallock Avenue. The trial court found that, when .the petitions were filed, the respondent’s whereabouts were unknown, and service on her was by publication.

The trial court found further that, during the period between the commitment and the filing of the petitions, the respondent had attended several counseling sessions. She terminated counseling, however, and refused to continue after November, 1986. The trial court also found that, in the year prior to the filing of the petitions, the respondent had been employed at a pet store, and that she had maintained contact with the Hallock Avenue address. She did not, however, inform DCYS as to how she could be contacted, and visitations occurred only when she contacted DCYS.

The petitioner also presented the testimony of Perl-swig. The trial court admitted into evidence a report prepared by Perlswig, which contained a psychological evaluation of the respondent and the children. This report, dated February 2,1988, referred to interviews with the respondent and the children that had been conducted by Perlswig from April 27, 1987, through June 24, 1987. The report also included an evaluation of Margaret by Linda C. Mayes, a pediatrician, that was conducted in June, 1987, and an evaluation of Walter by Fred Yolkmar, a physician, that was conducted in May, 1987. Perlswig stated in his report that he had also reviewed eight other reports on the family dating back to 1982.

The trial court noted that Perlswig concluded that the respondent “suffers from a severe mental disorder that seriously interferes with her capacity to care for, nurture, and protect the children. She has a diagnosis of schizophrenia which is expressed in fragmentation of her thinking, with delusional and paranoid ideation. Her illness prevents her from providing safe and appropriate care for her children. . . . [The respondent] is in need of psychiatric treatment and medication which she has refused.” He described schizophrenia as a disruption of the thinking process, and opined that, at the time of commitment, it had been important for the respondent to be in treatment and take medication, but that now it was probably too late. He also noted that, in his interviews with the respondent and the children, the children did not recognize the respondent as their mother. The trial court found further that Perlswig was of the opinion that the chaotic environment in which the children had spent their early lives had retarded the development of their intellectual and motor skills to the extent of possibly permanent damage. In the opinion of Perlswig, the respondent was unable to parent children, and has never been able to provide the continuity and consistency of care that is required by young children.

After the conclusion of the adjudicatory hearings, the trial court, on January 24,1989, filed a memorandum of decision wherein it found that the petitioner had, pursuant to § 17-43a (b), “established each ground for termination by clear and convincing evidence.” On May 2, 1989, the trial court filed a second memorandum of decision wherein, after making the six specific findings required by § 17-43a (d), it found that it was “in the best interest of each of the children that the parental rights of the [respondent] be terminated.” The trial court then rendered judgment terminating the parental rights of the respondent in and to Barbara J., Margaret J. and Walter J.

On appeal, the respondent claims that the trial court erred: (1) in admitting letters from Barbara’s foster mother as business records; (2) in admitting the report of Perlswig as a full exhibit without examining the portions that were based on hearsay evidence; (3) in finding abandonment without sufficient evidentiary support; (4) in not using the findings prescribed by § 17-43a (d) to establish a failure to rehabilitate; and (5) in finding no ongoing parent-child relationship without sufficient evidentiary support.

I

The respondent’s first claim is that the trial court erred in admitting into evidence letters from Barbara’s foster mother to the DCYS treatment worker. We disagree. Specifically, at the hearings, the attorney for the children offered into evidence four letters sent to Barbara’s DCYS treatment worker by her foster mother. The letters concerned, in part, the causal relationship between Barbara’s disruptive behavior and visits with her mother. Counsel for the respondent objected to the proffered evidence, claiming that the letters were inadmissible hearsay and gratuitous communications from one who had no duty to report to DCYS. In an effort to overcome the objections by counsel for the respondent, the children’s attorney made several foundational inquiries of the DCYS treatment worker. On the basis of the worker’s response to the inquiries, the court admitted the letters into evidence as business records. Notwithstanding the DCYS worker’s responses to the preliminary inquiries, and the trial court’s finding that the letters were business records, the respondent still argues that the foster mother had no duty to make any reports to DCYS about Barbara, and, therefore, the letters were not admissible as business records.

We have stated: “ ‘To be admissible under the business record exception of General Statutes § 52-180, “the business record must be one based upon the entrant’s own observations or upon information transmitted to him by an observer whose business duty it was to transmit it to him.” D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). Statements obtained from volunteers are not admissible though included in a business record because it is the duty to report in a business context which provides the reliability to justify this hearsay exception. Id. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973).’ State v. Sharpe, 195 Conn. 651, 663-64, 491 A.2d 345 (1985).” State v. Milner, 206 Conn. 512, 521, 539 A.2d 80 (1988).

The respondent recognizes in her brief, however, that there is a statutory duty, pursuant to General Statutes § 17-36, for custodians of children to file reports to DCYS “at such reasonable times and in such form and covering such data as said commissioner [of DCYS] directs.” Nonetheless, she argues that the letters were not business records under § 52-180 because “the [DCYS] worker admitted that there was no formal or regular schedule of contact between herself as a case worker and a foster parent . . . and she does not impose a particular reporting format on a foster parent.” This argument, however, misses the mark. Given the express statutory requirement that custodians of children “shall make such reports” as the “commissioner [of DCYS] directs,” the fact that the worker does neither impose a particular reporting format on a foster parent, nor expect the duty uniformly to be observed by foster parents, will not vitiate or weaken the express duty imposed on foster parents by § 17-36. Moreover, under General Statutes § 17-37, the commissioner of DCYS is required to exercise careful supervision of each child in his care, maintain contact with the child and foster parents and maintain such records as are necessary for the proper supervision of children under his guardianship or care. The duty of the foster parent to make the reports required under § 17-36, and the duty of the commissioner to receive reports and maintain records of his supervision and care of children as provided under §§ 17-36 and 17-37, all enable the commissioner to perform his duty regarding children under his care. In sum, the trial court did not err in finding that Barbara’s foster mother had a duty to make reports to the DCYS treatment worker. Therefore, the foster mother’s letters to the DCYS treatment worker were admissible business records under § 52-180.

II

Next, the respondent claims that the trial court erred by admitting the report of Perlswig as a full exhibit, without examining the portions of the report that were based on hearsay evidence. We are not persuaded. Prior to admitting the report into evidence, over the respondent’s objection, the court inquired:

“The Court: All right. This report you prepared, Doctor, does this represent the summation of your views with respect to this matter and your opinions?
“Dr. Perlswig: I believe that it does.
“The Court: All right. Overruled. Exception noted. Full exhibit.”

The report made reference to interviews conducted by Perlswig with the respondent and the children. In preparing his report, however, Perlswig had relied upon evaluations of Margaret and Walter by Mayes and Volkmar, respectively, as well as eight other reports on the family dating back to 1982. The respondent argues that “[mjost of the sources would not be admissible in themselves, without the authors’ presence for cross-examination.”

“The fact that an expert opinion is drawn from sources not in themselves admissible does not render the opinion inadmissible, provided the sources are fairly reliable and the witness has sufficient experience to evaluate the information. Vigliotti v. Campano, 104 Conn. 464, 133 A. 579 (1926); Schaefer, Jr. & Co. v. Ely, 84 Conn. 501, 508, 80 A. 775 (1911). An expert may base his opinion on facts or data not in evidence, provided they are of a type reasonably relied on by experts in the particular field. State v. Cuvelier, 175 Conn. 100, 107-108, 394 A.2d 185 (1978); see Fed. R. Evid. 703. This is so because of the sanction given by the witness’s experience and expertise. Burn v. Metropolitan Lumber Co., 94 Conn. 5, 6, 107 A. 609 (1919).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.16.8 (c). “[W]hen the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.” United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971), cert. denied, 405 U.S. 954, 92 S. Ct. 1168, 31 L. Ed. 2d 231 (1972). The better reasoned authorities favor the admissibility of expert opinion that is partly derived from written sources. See, e.g., Jenkins v. United States, 307 F.2d 637, 641 (D.C. Cir. 1962); 2 J. Wigmore, Evidence (Chadbourn Rev. 1979) § 665b (3).

It is significant to note that the respondent has not challenged Perlswig’s qualification as an expert. Moreover, Perlswig’s affirmative response to the court’s inquiry concerning whether his report was a “summation of [Ms] views . . . and . . . opinions” with respect to this matter strongly supports the inference that whatever “views” and “opinions” expressed by Perlswig in his report or in his testimony were his own “views” and “opinions” regardless of the documents or other data examined by him. (Emphasis added.) Furthermore, Perlswig was available for cross-examination concerning his report, and the respondent has not claimed that her cross-examination of Perlswig was in any way restricted. Consequently, we conclude that the trial court did not err in admitting Perlswig’s report into evidence.

Ill

Finally, the respondent has challenged all three grounds, as alleged by the petitioner and found by the trial court, for the termination of her parental rights. Because the grounds for termination of parental rights listed in § 17-43a (b) are in the alternative, our conclusion of no error on any one of the grounds makes it unnecessary to address any of the other grounds found by the trial court for the termination of the respondent’s parental rights. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Juvenile Appeal (83-BC), 189 Conn. 66, 69, 454 A.2d 1262 (1983).

“ ‘The termination of parental rights is defined as “the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . . ” General Statutes § 17-32a (e) (Rev. to 1972) [now § 45-61b (g)]. Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 [1972]; see In re Appeal of Kindis, 162 Conn. 239, 240, 294 A.2d 316 [1972]; Cinque v. Boyd, [99 Conn. 70, 82, 121 A. 678 (1923)].’ Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Termination of parental rights is ‘a most serious and sensitive judicial action.’ Id., 430.

“ ‘Section 17-43a carefully sets out . . . four situations that, in the judgment of the legislature, constitute “countervailing interests” sufficiently powerful to justify the termination of parental rights in the absence of consent. The commissioner of children and youth services, in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. No all-encompassing “best interests” standard vitiates the requirement of compliance with the statutory criteria. See Alsager v. District Court of Polk County, [406 F. Sup. 10 (S.D. Iowa 1975), aff'd, 545 F.2d 1137 (8th Cir. 1976)]; In re Adoption of Children by D., 61 N.J. 89, 293 A.2d 171 (1972); Malpass v. Morgan, 213 Va. 393, 192 S.E.2d 794 (1972); Ketcham & Babcock, “Statutory Standards for the Involuntary Termination of Parental Rights,” 29 Rutgers L. Rev. 530, 539 (1976); comment, “Termination of Parental Rights in Adoption Cases: Focusing on the Child,” 14 J. Fam. L. 547, 550 (1975).’ In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671-72, 420 A.2d 875 (1979).” In re Luis C., 210 Conn. 157, 164-65, 554 A.2d 722 (1989).

Section 17-43a (b) provides in pertinent part: “The superior court upon hearing and notice . . . 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 nonconsenting parent, over an extended period of time, which . . . shall not be less than one year . . . (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 . . . . ” The petitioner makes the following allegations regarding each child in each petition: “The child has been found in a prior proceeding to have been neglected or uncared for. The parents 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. . . . The previous reason(s) has/have existed for not less than one year.” The trial court found that the petitioner established this ground in the petitions by clear and convincing evidence.

The only challenge asserted by the respondent against this finding is that the trial court’s determination regarding her failure to rehabilitate herself was clearly erroneous because the trial court made the six specific findings pursuant to § 17-43a (d) at the disposition hearing instead of at the adjudicatory hearing. In reliance on In re Shavoughn K., 13 Conn. App. 91, 534 A.2d 1243 (1987), cert. denied, 207 Conn. 805, 540 A.2d 374 (1988), and In re Shannon S., 41 Conn. Sup. 145, 562 A.2d 79, aff’d, 19 Conn. App. 20, 560 A.2d 993 (1989), the respondent argues that the six factors listed in § 17-43a (d) must be considered at the adjudicatory stage in a determination of failure to rehabilitate pursuant to § 17-43a (b) (2). We recognize that in In re Shavoughn K., the Appellate Court-stated: “In determining whether the parent has failed to rehabilitate herself to the extent that she could assume a responsible role in her children’s lives, the court must consider the six factors listed in General Statutes § 17-43a (d); see In re Rayna M., 13 Conn. App. 23, 31-32, 534 A.2d 897 (1987).” In re Shavoughn K., supra, 98. This Appellate Court statement was repeated in In re Shannon S., supra, 154. We have examined In re Rayna M., In re Shavoughn K. and In re Shannon S., for some authority or analysis that supports this proposition. Our examination and search, however, have been unsuccessful. In re Shavoughn K. cites In re Rayna M., but the In re Rayna M. reference is to a discussion of an amendment to § 17-43a (b) (2) concerning a language change from “at some future date” to “within a reasonable time” that a parent could assume a responsible position in the life of the child. See In re Rayna M., supra, 31-32. In fact, In re Rayna M. does not mention § 17-43a (d) and its six required findings at all. Thus, insofar as In re Shavoughn K. is applied to this case, we disagree with its reasoning.

We therefore hold that a termination of parental rights judgment must be based on compliance with the statutory requirements of § 17-43a. A finding that the petitioner has proven by clear and convincing evidence at least one of the statutory alternatives listed in § 17-43a (b) is a predicate for consideration of the six factors listed in § 17-43a (d). We do not construe § 17-43a (b) (2) as requiring consideration any different from the remainder of § 17-43a (b). Whether the six factors listed in § 17-43a (d) are expressly considered in conjunction with or subsequent to the trial court’s determination of whether the petitioner has produced the statutorily required proof of at least one of the alternatives listed in § 17-43a (b) is without significance as long as no judgment of termination is rendered until after there has been full compliance with § 17-43a. Although § 17-43a does not mandate a bifurcated hearing, it does command a termination decision that clearly identifies the concerns of subsections (b) and (d). Bifurcating the termination decision, however, enables the trial court to focus clearly on the statutory requirements of each subsection.

In the present case, inasmuch as the trial court meticulously made all of the statutorily required findings for the adjudications under § 17-43a (b) (2), and, thereafter made all of the enumerated findings mandated under § 17-43a (d), we discern no substantive significance to the fact that the termination decision was bifurcated. Consequently, we find no error in the action of the trial court in rendering its termination decision after the bifurcated hearing.

Our conclusion of no error regarding this finding makes it unnecessary for us to consider the claims of error regarding the other findings that the trial court used as a basis for the termination of the respondent’s parental rights. See In re Juvenile Appeal (84-BC), supra, 258; In re Juvenile Appeal (83-BC), supra, 69.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 17-43a(a) provides in pertinent part: “In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child, including the right to petition the court for the revocation of the commitment of the child.”

       General Statutes § 17-43a (b) provides: “The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physicial, 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.”

       At the hearing on July 20, 1988, counsel for the petitioner requested permission to withdraw the petition as to each person named as father of each child named in the petitions. Since there was no evidence of paternity with respect to any of the alleged fathers, the trial court granted the petitioner’s request and allowed each petition to be withdrawn as to the alleged fathers named therein. Each petition continued, however, as to the mother, Maureen J.

       General Statutes § 17-43a (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, eommunicatioins 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.”

       The following foundational inquiries were made to the DCYS treatment worker by counsel for the children: “Were the letters received by you at DCYS? Were they made part of the official case file on these children? Is it customary for foster parents to prepare letters of concern or notes and submit them to the DCYS worker assigned? When a DCYS worker leaves a case, does the worker notify the foster mother of the new worker’s name so [the foster mother] can submit reports? Is it their responsibility and obligation to do so? Is it part of their contract?”
      The treatment worker responded in the affirmative to all of these questions.

       The business records statute, General Statutes § 52-180, provides in pertinent part: “admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.”

       “[General Statutes] Sec. 17-36. custodians of children to file REPORTS. PLACING OF CHILDREN IN FOSTER HOMES. The institutions having custody of such children and the agencies and persons licensed by authority of this chapter shall make such reports to said commissioner at such reasonable times and in such form and covering such data as said commissioner directs. The commissioner and his deputy and agents shall supervise the placing of such children in foster homes. Said commissioner may place children who have not been properly placed in homes suitable for their care and protection. In placing any child in a foster home, said commissioner shall, if practicable, select a home of like religious faith to that of the parent or parents of such child, if such faith is known or ascertainable by the exercise of reasonable care.”

       “[General Statutes] Sec. 17-37. supervision of children under guardianship or care of commissioner. The commissioner of children and youth services, or any agent appointed by him, shall exercise careful supervision of each child under his guardianship or care and shall maintain such contact with the child and his foster parents as is necessary to promote the child’s safety and his physical, educational, moral and emotional development. He shall maintain such records and accounts as may be necessary for the proper supervision of all children under his guardianship or care.”

       The respondent does not argue on appeal that there was insufficient evidence to support the trial court’s finding of failure to rehabilitate pursuant to General Statutes § 17-43a (b) (2). Nevertheless, even if she had made this argument we would have concluded that there was sufficient evidence to support the trial court’s finding. In particular, the trial court found that the respondent: (1) visited the children sporadically; (2) refused to seek psychiatric treatment; (3) refused to divulge her whereabouts; (4) failed to appear at the hearings. Furthermore, Perlswig concluded: (1) that the mother has never been able to provide the continuity and consistency of care that is required by young children; and (2) that even if she were to seek psychiatric treatment at present, it would "probably [be] too late.”


text:
    Mark Martone v. Brian Lensink, Commissioner of Mental Retardation
    (13891)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued April 4
    decision released May 15, 1990

      Lawrence W. Berliner, for the appellant (plaintiff).

      James P. Welsh, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Peters, C. J.

In this administrative appeal, the sole issue is whether the trial court erred in concluding that the defendant, Brian Lensink, commissioner of mental retardation, has sustained his burden of rebutting the presumption of prejudice created by an ex parte submission of documents to an administrative hearing officer. These proceedings are the aftermath of our judgment in the first appeal taken by the plaintiff, Mark Martone, in which we ordered a remand for an evidentiary hearing to determine whether the plaintiff had been irreparably prejudiced by the improper submission. Martone v. Lensink, 207 Conn. 296, 307, 541 A.2d 488 (1988) (Martone I). We transferred to this court the plaintiffs present appeal from the trial court’s judgment in favor of the defendant. Practice Book § 4023. We find no error.

The underlying history of this case is fully set out in Martone I. After an administrative hearing, a hearing officer determined that, despite the plaintiff’s objection, the department of mental retardation had acted in his best interest in transferring him to a different group home. Id., 298. In her findings of fact and conclusions of law, the hearing officer noted that she had received, but had not considered, four documents submitted to her, ex parte, subsequent to the conclusion of the hearing. Id. The plaintiff unsuccessfully moved for administrative reconsideration, and lost the administrative appeal in the Superior Court that he brought pursuant to General Statutes § 4-183 (a). That court determined that the plaintiff had not sustained his burden of showing that the ex parte communication had prejudiced his rights. Id., 300.

In the plaintiff’s first appeal to this court, we held that the ex parte submission had contravened the requirements of General Statutes § 4-181 and con-eluded, in accordance with our intervening decision in Henderson v. Department of Motor Vehicles, 202 Conn. 453, 457-60, 521 A.2d 1040 (1987), that the burden of proof on the issue of prejudice had to be borne by the agency rather than by the plaintiff. Martone I, supra, 301. Accordingly, we ordered a remand for a further evidentiary inquiry to determine “whether the defendant’s ex parte submission was in fact prejudicial.” Id., 307. In ordering a remand for a further hearing, we directed the defendant to submit to the trial court “whatever evidence may be needed to show that his agency’s departure from § 4-183 was a procedural irregularity that did not prejudice the plaintiff.” Id. We instructed the defendant that it was his burden “to make an evidentiary showing to rebut an inference of prejudice, by demonstrating either that the hearing officer never read the documents that she received or that their contents did not adversely affect the disposition of the plaintiff’s case.” Id., 305.

Upon remand, the trial court, Barry, J., over the objection of the plaintiff, granted the defendant’s request to offer proof to rebut the inference of prejudice. The court premised its ruling on the direction contained in Martone I and the authority conferred on it by § 4-183 (f) to supplement the administrative record “[i]n cases of alleged irregularities in procedure before the agency, not shown in the record.” The court then conducted a hearing at which the hearing officer testified that she had not read the documents either before or after issuing her decision, and that they had played no part in its outcome. Finding the hearing officer’s testimony credible, the court held that the defendant had sustained his burden of proof and rendered judgment for the defendant.

The plaintiff has raised four issues in the present appeal. He maintains that the trial court erred: (1) in permitting the administrative record to be supplemented by the testimony of the hearing officer; (2) in permitting the evidentiary hearing to proceed without disclosure of the contents of the ex parte communication; (3) in concluding that the defendant had sustained his burden of proof on the basis of the testimony of the hearing officer; and (4) in conducting the evidentiary hearing without proper deference to the standards established in Henderson v. Department of Motor Vehicles, supra. We are unpersuaded.

In our review of these claims of error, we start from the well established principle that, “[i]n carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion.” Nowell v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988); Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 222, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985); Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 794-95, 462 A.2d 1043 (1983); Mazzotta v. Bornstein, 105 Conn. 242, 243, 135 A. 38 (1926). Application of this principle requires us to reject the plaintiffs first claim of error, since our order of remand in Martone I, supra, 307, specifically directed the trial court to conduct an evidentiary hearing on the issue of the prejudicial impact of the ex parte submission to the defendant’s hearing officer.

Despite the plaintiff’s contrary contention in his second claim of error, the terms of our remand did not categorically direct the defendant to disclose the contents of the ex parte submission. In our opinion, we envisaged such a disclosure as an alternative if the defendant could not establish that the hearing officer had not read the documents in question. Id., 305. The plaintiff’s contention that access to these documents was essential to proper cross-examination of the hearing officer, i.e., to test the veracity of her statement that she had not read the documents in question, is not properly before us, because that claim was not “distinctly raised at the trial.” Practice Book § 4185; Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 603, 539 A.2d 101 (1988); Jefferson Garden Associates v. Greene, 202 Conn. 128, 140, 520 A.2d 173 (1987).

The plaintiff’s third claim of error challenges the sufficiency of the evidence upon which the trial court relied to conclude that the defendant had rebutted the inference of prejudice arising out of the ex parte submission. Conceding, sub silentio, that we are bound by the trial court’s credibility assessment of the testimony of the hearing officer, the plaintiff nonetheless maintains that her statement that she had not read the documents is fatally inconsistent with her earlier acknowledgment that she had sufficiently examined them to be able to identify them by title in her administrative decision. Martone I, supra, 298. This argument might have merit if the disclosure of this listing had only lately come to light. We were, however, fully apprised of its existence when we ordered a remand. Id. Had we deemed the identification of these documents by title to be sufficient to compel the inference that the hearing officer had read the documents, we would not have ordered a further evidentiary inquiry into the hearing officer’s conduct. The terms of our mandate therefore refute this claim of error.

The plaintiff’s final claim of error alleges noncompliance with the standards established by Henderson v. Department of Motor Vehicles, supra, and incorporated by reference in our mandate in Martone I, supra, 307. The plaintiff identifies three aspects of the Henderson guidelines as relevant to this appeal. The first guideline concerns allocation of the burden of proof to the agency to rebut the inference of prejudice from an ex parte submission; clearly, the trial court properly observed this requirement on remand. The second guideline concerns access to the contents of the ex parte submission; we have already discussed the unpersuasiveness of the plaintiff’s claim on the present record. Finally, the third guideline questions the admissibility of testimony from the hearing officer in light of the doubt expressed in Henderson v. Department of Motor Vehicles, supra, 459, about the propriety of subjecting administrative adjudicators “to inquiry concerning the mental process used in reaching a decision.” Our order of remand, however, in directing the precise form of the hearing that actually took place, impliedly recognized a distinction between an inquiry into a hearing officer’s subjective decision-making process and an inquiry into the objective question of what she had read. We conclude, therefore, that the fact specific hearing that was held, in accordance with our remand, complied with the guidelines of Henderson v. Department of Motor Vehicles, supra, in the circumstances of this case.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 4-183 provided, at the time of this case, in relevant part: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal . . . . ”

       General Statutes § 4-181 provided, at the time of this case: “communications BETWEEN AGENCY MEMBERS AND EMPLOYEES AND PARTIES IN contested CASES. Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. An agency member may communicate with other members of the agency, and may have the aid and advice of one or more personal assistants.”

       The plaintiffs earlier appeal to this court; Martone v. Lensink, 207 Conn. 296, 305, 541 A.2d 488 (1988); challenged only the procedural fairness and not the substantive merits of the hearing officer’s decision.


author: Per Curiam.

text:
    Margarida Ferreira, Executrix (Estate of Helder Ferreira) v. Louis Pisaturo
    (13907)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued April 6
    decision released May 15, 1990

      Mark A. Healey, with whom, on the brief, was Vincent R. Falcone, for the appellant (plaintiff).

      Christopher P. McCormack, for the appellee (defendant).
   Per Curiam.

This appeal presents the issue of whether a bucket loader, claimed to have been operated negligently on a highway construction work-site by a fellow employee of the plaintiff’s decedent, was a “motor vehicle” and thus falls within an exception to the general bar against actions based on the negligence of a fellow employee created by General Statutes § 31-293a. Section 31-293a provides that when the workers’ compensation remedy is available for an injury caused by the negligence or wrong of a fellow employee, that remedy is exclusive and “no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is hosed on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1.” (Emphasis added.) General Statutes § 14-1 (30) defines “motor vehicle” broadly as meaning “any vehicle propelled or drawn by any nonmuscular power,” but excepts various self-propelled vehicles named specifically and also a category of vehicles referred to as “special mobile equipment as defined in subsection (i) of section 14-165.”

General Statutes § 14-165 (i) expressly defines “special mobile equipment” to mean “a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway, including but not limited to . . . bucket loaders,” as well as other listed items of similar construction equipment. Thus, it is clear that the bucket loader being operated by the defendant as the fellow employee of the plaintiff’s decedent at the time of the accident was not a “motor vehicle” and that the negligence relied upon did not relate to the operation of a motor vehicle so as to escape the bar of § 31-293a against such actions. Accordingly, the trial court did not err in rendering summary judgment for the defendant.

The trial court filed a detailed memorandum of decision setting forth the facts and fully responding to the arguments of the plaintiff. Ferreira v. Pisaturo, 41 Conn. Sup. 326, 574 A.2d 1324 (1989). We adopt the trial court’s decision as a statement of the facts and the applicable law. It would serve no useful purpose for us to repeat the very complete discussion contained therein.

The judgment is affirmed.

       “[General Statutes] Sec. 31-293a. no right against fellow employee: exception. If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. For purposes of this section, contractors’ mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not ‘motor vehicles’ if the claimed injury involving such equipment occurred at the work-site on or after October 1, 1983. No insurance policy or contract shall be accepted as proof of financial responsibility of the owner and as evidence of the insuring of such person for injury to or death of persons and damage to property by the commissioner of motor vehicles required by chapter 246 if it excludes from coverage under such policy or contract any agent, representative or employee of such owner from such policy or contract. Any provision of such an insurance policy or contract effected after July 1,1969, which excludes from coverage thereunder any agent, representative or employee of the owner of a motor vehicle involved in an accident with a fellow employee shall be null and void.”
      The trial court held that the bucket loader was not a “motor vehicle” as defined by General Statutes § 14-1 (30) and thus did not satisfy this requirement of the first sentence of § 31-293a for the exception to the general bar against actions based on the negligence of a fellow employee. As an alternative ground of the decision, the court also concluded that the bucket loader, though not specifically included among the items of contraction equipment listed in the second sentence as not being motor vehicles for purposes of § 31-293a, was “similar equipment designed for use principally off public roads” and thus could not be considered a motor vehicle for the purpose of the exception to the statutory bar. We agree with both these conclusions.

       General Statutes § 14-1 (30) provides as follows: “ ‘Motor vehicle’ means any vehicle propelled or drawn by any nonmuscular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf cart type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, bicycles with helper motors as defined in section 14-286, special mobile equipment as defined in subsection (i) of section 14-165 and any other vehicle not suitable for operation on a highway.”

       General Statutes § 14-165 (i) provides as follows: “ ‘Special mobile equipment’ means a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway, including but not limited to ditch-digging apparatus, well-boring apparatus and road construction and maintenance machinery such as asphalt spreaders, bituminous mixers, bucket loaders, tractors other than truck tractors, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth moving carry-alls and scrapers, power shovels and drag lines, and self-propelled cranes and earth moving equipment. The term does not include house trailers, dump trucks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached.”