text:
    In re Jessica M.

    (14106)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued December 13, 1990
    decision released February 12, 1991

      Susan M. Cormier, with whom were William R. Moller, Robert B. Katz and, on the brief, Wesley W. Horton, for the appellant (respondent).

      Barbara J. Ruhe, with whom was Jonathan W. A. Ruhe, for the appellees (petitioners).

      Sue Ann Shay, with whom was Ann Hodgdon, for the minor child.

      Clarine Nardi Riddle, then attorney general, and Mary-Anne Ziewacz Mulholland and Judith Merrill Earl, assistant attorneys general, filed a brief for Amy B. Wheaton, commissioner of the department of children and youth services, as amicus curiae.

       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 ease shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

   Peters, C. J.

The dispositive issue in this appeal is the proper construction of General Statutes § 45-6If (f) (3), which authorizes termination of parental rights if there is “no ongoing parent child relationship.” The trial court, acting on the petition of the child’s legal guardians, relied on this statutory provision to terminate the parentál rights of the respondent, the child’s natural mother, on the basis of the court’s finding that the natural mother is not the “psychological parent” of her child. The respondent appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The petitioners, a paternal aunt and uncle of the child who is the subject of this proceeding, have been the child’s legal guardians since February 23,1988. On June 29, 1989, they filed a petition to terminate the parental rights of the respondent, who is the child’s sole surviving parent, so that they could adopt the child and end what they perceived as a conflict in the child’s loyalties caused by the respondent’s visitation. Pursuant to § 45-61f (f) (3), the petitioners alleged that there was “no ongoing parent child relationship” between the respondent and the child, and that “to allow further time for the establishment or reestablishment of the parent child relationship would be detrimental to the best interests of the child.”

In considering the grounds for termination of the respondent’s parental rights, the trial court reviewed the respondent’s history and found the following facts, which are not in dispute: The respondent, who was thirty-seven years old at the time of the termination hearing, has a history of substance abuse, including addiction to heroin, use of cocaine, and abuse of other drugs, dating back to the age of sixteen. Although she appeared to have achieved sobriety and to have maintained it for a number of years, she again began to abuse drugs shortly after her husband was killed in an accident in 1984, when the child who is the subject of these proceedings was seven months old.

The department of children and youth services (DCYS) began to receive referrals in 1985 concerning the respondent’s drug use and inability to provide responsible care for her daughter. Late in 1986, on the basis of the respondent’s admissions, the Superior Court for Juvenile Matters adjudged the child to be neglected, committed her to the custody of DCYS, and simultaneously approved the respondent’s parents, the child’s maternal grandparents, as the child’s intended foster home. Between October, 1986, and February, 1988, the respondent lived with her parents and provided some care for her child.

By the end of 1987, the respondent had not succeeded in controlling her drug addiction, and her mother, who was by that time terminally ill, could no longer provide foster care for the child. At that time, the petitioners in this action informed DCYS that they were willing to assume legal guardianship of the child. The respondent consented to this transfer of guardianship with the understanding that she would be able to petition the court to regain custody if she could succeed in rehabilitating herself.

The trial court found that in the time between the transfer of guardianship in February, 1988, and the termination hearing in January, 1990, the respondent had achieved a substantial degree of rehabilitation. She had reportedly remained drug-free since September, 1988. She had also secured and maintained a job, and, with financial assistance from her father, had purchased a condominium and a car. She had consistently planned for reunification with her child during the period of the petitioners’ guardianship, and had visited the child and talked with her on the telephone as frequently as the court and the legal guardians would permit. The court also found that the child recognized the respondent as her “real mother,” enjoyed her mother’s visits and displayed affection for her.

The trial court nevertheless concluded that there was “no ongoing parent child relationship” between the respondent and her daughter as such a relationship is defined in § 45-61f (f) (3), essentially because the respondent had not provided day-to-day care for her daughter for more than a year. Observing that the statute’s definition of a parent-child relationship as “the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child” corresponds to the concept of “psychological parenthood” developed by Joseph Goldstein, Anna Freud and Albert Solnit in Beyond the Best Interests of the Child (1973), the trial court concluded that the statute authorizes the court to terminate parental rights, regardless of fault, if it finds that the biological parent is not the “psychological parent” of the child and that other statutory criteria are satisfied.

The respondent’s appeal urges us to overturn the trial court’s judgment on two grounds. First, the respondent argues that the trial court misconstrued the standard for termination of parental rights contained in § 45-61f (f) (3). Second, she contends that the facts found by the trial court are insufficient to sustain termination of her parental rights if the proper legal standard is applied. We agree with both of the respondent’s claims and accordingly reverse the judgment terminating her parental rights.

I

To put the respondent’s claims in perspective, we note at the outset that the termination of parental rights is defined, in General Statutes § 45-61b (g), as “the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . .” It is, accordingly, “a most serious and sensitive judicial action.” Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Although the severance of the parent-child relationship may be required under some circumstances, the United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that “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 also In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983) (noting that “it is both a fundamental right and the policy of this state to maintain the integrity of the family”). Termination of parental rights does not follow automatically from parental conduct justifying the removal of custody. “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

Accordingly, § 45-61f (f) sets out three carefully limited situations in which “countervailing interests” are sufficiently powerful to justify the “irretrievable destruction” of family ties that the nonconsensual termination of parental rights accomplishes. See In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979). In order to secure termination of the respondent’s parental rights pursuant to § 45-61f (f), the petitioners must allege and prove, by clear and convincing evidence, that at least one of its enumerated grounds has been satisfied.

As a matter of statutory fiat, consideration of the best interests of the child cannot vitiate the necessity of compliance with the specified statutory standards for termination. In re Barbara J., 215 Conn. 31, 45, 574 A.2d 203 (1990); In re Luis C., 210 Conn. 157,165, 554 A.2d 722 (1989); In re Juvenile Appeal (Anonymous), supra, 177 Conn. 671-72; see also O. Ketcham & R. Babcock, “Statutory Standards for the Involuntary Termination of Parental Rights,” 29 Rutgers L. Rev. 530, 539 (1976). We have observed, however, that “[insistence upon strict compliance with the statutory criteria before termination of parental rights and subsequent adoption proceedings can occur is not inconsistent with concern for the best interests of the child.” In re Juvenile Appeal (Anonymous), supra, 177 Conn. 672. A child, no less than a parent, has a powerful interest in the preservation of the parent-child relationship. Santosky v. Kramer, supra, 760.

Similarly, questions concerning the ultimate custodial placement of the child may not be intermingled with the issues of termination. In re Juvenile Appeal (Anonymous), supra, 177 Conn. 673. “Although petitions for termination are presumably seldom brought unless prospective adoptive parents are available, there still must be a two-step process to determine . . . whether cause for termination . . . has been proved” before the availability of a proper adoptive home can be considered. Id. The availability of such a placement is not, in itself, a ground for the termination of parental rights. “[A] parent cannot be displaced because ‘someone else could do a “better job” of raising the child . . . .’ ” Corey L. v.Martin L., 45 N.Y.2d 383, 391, 380 N.E.2d 266, 408 N.Y.S.2d 439 (1978); see comment, “The ‘Two-Pronged’ Inquiry—The Best Alternative for the Conflicting Rights Involved in Proceedings for Termination of Parental Rights,” 13 Conn. L. Rev. 709 (1981).

A

The sole statutory ground invoked by the petitioners in this action is subdivision (3) of § 45-61f (f). This subdivision provides that the court may approve a petition for termination if it finds that “there is no ongoing parent child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent child relationship would be detrimental to the best interests of the child.”

The respondent argues that the trial court’s construction of this provision fails to consider prior judicial interpretations of identical statutory language and, in so doing, places a potentially insurmountable burden on all noncustodial parents. She argues that the trial court’s literal interpretation of the statute as requiring the provision of daily care and guidance in order to maintain an “ongoing parent child relationship” places noncustodial parents, including parents who are granted only limited visitation rights following a divorce, at risk of losing their remaining parental rights simply through the passage of time regardless of fault. We agree.

The statute’s definition of an “ongoing parent child relationship” as “the relationship, that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child” is inherently ambiguous when applied to noncustodial parents who must maintain their relationships with their children through visitation. When this court first had occasion to construe the statutory language at issue here, we resolved this ambiguity by holding that “[i]t is reasonable to read the language of ‘no ongoing parent-child relationship’ to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced. In either case the ultimate question is whether the child has no present memories or feelings for the natural parent.” In re Juvenile Appeal (Anonymous), supra, 177 Conn. 670. In that case, the mother had been separated from her child for a period of twenty-one months through a series of unfortunate circumstances that had begun when the mother was hospitalized with a serious illness. Although the child had been in foster care since the age of three and one-half years, and although the foster family wished to adopt her, we concluded that the statutory ground of “no ongoing parent-child relationship” had not been satisfied because the evidence demonstrated that the child clearly recognized her natural mother, who had been her primary caretaker until the time of her hospitalization, and that the child usually enjoyed the visits with her mother that had been permitted since their separation. Id., 674-76.

Without changing our view of the proper interpretation of this language, we subsequently upheld a termination of parental rights on the ground of “no ongoing parent-child relationship.” In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645, 436 A.2d 290 (1980). As a factual matter, the evidence in that case established that the child, who was three and one-half years old at the time of the termination hearing and who had been separated from his mother since the age of eight months, did not appear to recognize his natural mother when she visited, did not respond to her overtures, appeared to avoid her, and identified only his foster parents as his father and mother. Such evidence, we concluded, justified the trial court’s determination that no parent-child bond existed, despite the fact that the mother had maintained contact with her son through visitation. Id.

The Appellate Court, applying the statutory standard of “no ongoing parent-child relationship” in the light of our decisions, has correctly concluded that the statute requires that a child have some “ ‘present memories or feelings for the natural parent’ ” that are positive in nature. In re Juvenile Appeal (84-6), 2 Conn. App. 705, 709, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985). Although we determined, in In re Juvenile Appeal (Anonymous), supra, 177 Conn. 674, that evidence of a troubled parent-child relationship was, without more, insufficient to justify termination on the basis of “no ongoing parent-child relationship,” we agree with the Appellate Court that the standard contemplates a relationship that has some positive attributes. It is not unlikely that most parent-child relationships in which state intervention is required, including custody disputes incidental to divorce, will exhibit signs of strain. While evidence of a child’s ambivalent feelings toward a noncustodial parent would not alone justify a finding that “no ongoing parent-child relationship” exists, it is nevertheless reasonable to construe this statutory ground for termination to require a finding that no positive emotional aspects of the relationship survive.

B

. Our interpretation of § 45-61f (f) (3) accords with the public policy of this state “to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care . . . .’’General Statutes § 17-38a (a). When a child is committed to the custody of the state, the state has a duty to provide supportive services to the parents to enhance the possibility of eventual reunification of the family. See General Statutes §§ 17-38a (a), 17-43a (d). Although we recognize that no such statutory duty exists when, as here, legal guardianship of the child is vested in a private party, the public policy concern for protection of familial integrity is nevertheless the same. If a court were authorized to find that day-to-day absence alone proved that “no ongoing parent child relationship” existed, a parent whose child needed a temporary placement would otherwise have to consider the risk that his or her parental rights might be terminated if the guardian subsequently wished to adopt. Such a standard for termination would create an incentive for a parent to yield temporary custody to a stranger rather than to an interested relative who might develop a strong bond with the child. Creating a disincentive for a parent to choose the guardian most likely to love and protect the child while the parent was unable to provide daily care would contravene the state’s interests in protecting both family integrity and the best interests of the child.

Subsequent legislative activity regarding the lack of an “ongoing parent child relationship” as a ground for termination confirms that our interpretation of this standard accurately reflects the will of the legislature. Our 1979 decision in In re Juvenile Appeal (Anonymous), supra, 177 Conn. 675, expressly rejected the trial court’s determination that “no ongoing parent-child relationship” meant “ ‘no meaningful relationship.’ ” (Emphasis in original.) Id. In 1983, the Connecticut legislature considered an amendment, contained in House Bill No. 7130, that would have effectively overruled our holding in that case by substituting the phrase “meaningful relationship between parent and child” for “ongoing parent-child relationship,” by minimizing the role of the child’s memories and feelings for the natural parent, and by minimizing the significance of parental contact through visitation. After public hearings in which at least one advocate referred to this court’s decision and urged the legislature to reconsider the proposed change in the law because it would undermine the ability of parents to present evidence to prevent the termination of their parental rights, the proposed bill was subsequently amended to reinstate the original language of the statute regarding the ground permitting termination on the basis of “no ongoing parent-child relationship.” See 26 S. Proc., Pt. 12,1983 Sess., pp. 4145-47; 26 H.R. Proc., Pt. 24,1983 Sess., pp. 8671-75. The relevant statutory language defining “no ongoing parent child relationship” has not been amended since 1983. Because the legislature was aware of our decision and chose not to amend the language we had construed, we conclude that the legislature has effectively signalled its agreement with our interpretation. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987); see also 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.10.

II

The respondent’s second claim is that the subordinate facts found by the trial court would not support a termination of her parental rights on the basis of “no ongoing parent child relationship” if the trial court had applied that standard as this court has interpreted it. We agree.

As a preliminary matter, we note that it was undisputed that the petitioners had restricted the respondent’s ability to visit her daughter throughout the entire period of their guardianship. The petitioners had permitted the respondent to visit the child, only on a supervised basis, on an average of four hours every other week, and had permitted the respondent to talk to the child on the telephone three times a week. The respondent had agreed with this schedule of visitation at the time of transfer of guardianship, when she was still actively abusing drugs, but after months of sobriety she had sought, without success, increased and unsupervised visitation. The evidence regarding the nature of the respondent’s relationship with her child at the time of the termination hearing must be reviewed in the light of the circumstances under which visitation had been permitted. In re Luke G., 40 Conn. Sup. 316, 324-25, 498 A.2d 1054 (1985).

The principal evidence relied upon by the court in support of termination was the opinion of David Mantell, a psychologist appointed to conduct an evaluation of the child’s relationships with the respondent and with the petitioners. In his report to the court, Mantell indicated that the child’s “primary psychological bond [is] with her aunt and uncle who are her psychological parents and her parents of preference.” Mantell characterized the child’s relationship with the respondent as “a visiting relationship which appears to be an affectionate one and one of mutual interest.” He observed, however, that the child would suffer a loss if she were never allowed to see her biological mother again, although in his opinion that loss would be far less severe than the loss of her present home with the petitioners.

A substantial portion of the expert testimony at the termination hearing focused on the child’s positive relationship with the petitioners and the possible psychological harm she might suffer if she were to be separated from them. Such testimony, although highly relevant to the child’s custodial placement, does not support the legal conclusion that no parent-child bond existed between the respondent and the child. “The fact that the child may have established a loving relationship with someone besides her mother does not prove the absence of a mother-daughter relationship. It is insufficient to prove that the child has developed emotional ties with another person. Certainly children from two-parent homes may have two ‘psychological parents’; even children whose parents are divorced may retain close emotional ties to both, although the relationship to one is maintained solely through visitation.” In re Juvenile Appeal (Anonymous), supra, 177 Conn. 675. Under the two-pronged inquiry required by § 45-6 If (f) (3), evidence regarding the availability of a suitable adoptive home is relevant only after the court has determined that no ongoing parent-child relationship exists. Id., 673-74.

The subordinate facts found by the trial court indicate that the respondent has consistently visited the child throughout the petitioners’ guardianship and has consistently planned for reunification. The court’s findings also indicate that the child recognizes the respondent as her mother, that she would suffer some sense of loss if not permitted to visit with her, and that the relationship between the child and her mother is “an affectionate one and one of mutual interest.” The legal conclusion to be drawn from these facts is that the child has “present memories or feelings” for her mother, that at least some aspects of these memories and feelings are positive, and that an ongoing parent-child relationship thus exists. In re Juvenile Appeal (Anonymous), supra, 177 Conn. 670; In re Juvenile Appeal (81-6), supra, 709. The petitioners therefore have not met their burden of proving, by clear and convincing evidence, that the statutory ground for termination under § 45-61f (f) (3) has been satisfied. See In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983) (“[w]here a fundamental right is involved, the burden of proof is always on the party seeking to interfere with that right”).

Ill

It is important to note, in conclusion, what we have not decided in this appeal. Although we are reversing the trial court’s termination of the respondent’s parental rights, its decision regarding the child’s present guardianship stands. The respondent retains the right to visit the child and the right to seek restoration of guardianship. Although a “best interests of the child” analysis is irrelevant in determining whether an “ongoing parent-child relationship” exists, it is relevant, and perhaps dispositive, in matters of visitation; see General Statutes §§ 45-44e and 46b-59; and in any proceeding to transfer guardianship. See In re Juvenile Appeal (Anonymous), supra, 177 Conn. 657-68 (holding that the trial court did not err in denying a restoration of custody to the mother, although the original cause for commitment no longer existed, because the state had met its burden of proving that a transfer of custody at that time would be detrimental to the interests of the child). The unanimous opinion of the experts at the termination hearing in this case was that any attempt at that time to remove the child from her home with the petitioners would be extremely detrimental to her psychological health. We would not hazard to predict whether such opinions will change in the future. Many factors could affect such a determination, including the respondent’s continued sobriety and stability, the continuing willingness and ability of the petitioners to provide a suitable home, and the stated preferences of the child herself.

That portion of the judgment terminating the respondent’s parental rights is reversed and the case is remanded with direction to render judgment denying the petition.

In this opinion the other justices concurred.

       General Statutes § 45-61f (f) provides in relevant part: “[T]he court may approve the petition terminating the parental rights . . . 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 . . . (3) there is no ongoing parent child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent child relationship would be detrimental to the best interests of the child.”

       In the same memorandum of decision, the trial court granted the petition terminating the respondent’s parental rights and denied the respondent’s concurrent motion to open and to restore guardianship to her. The respondent has not appealed from the denial of her motion for restoration of guardianship.

       The petitioner Mrs. L was the sister of the child’s deceased father; the petitioner Mr. L is her husband. Legal guardianship was transferred to Mr. and Mrs. L jointly.

       The respondent’s own testimony, which was uncontradicted, was that she entered a drug rehabilitation program shortly after the hearing on the transfer of guardianship, that she had stopped using drugs at that time, that she suffered a brief relapse in August, 1988, for which she sought immediate treatment, and that she has been drug-free since September, 1988.

       Indeed, General Statutes § 45-61f (f) expressly requires the court to find, in addition to the existence of an enumerated ground for termination, that such termination is in the best interests of the child. This statutory element was added to § 45-61f (f) by Public Acts 1983, No. 83-478, § 2. Both its plain language and its available legislative history indicate that the legislature intended this provision to serve as an additional, not an alternative, requirement for the termination of parental rights. See 26 S. Proc., Pt. 12,1983 Sess., p. 4146, remarks of Senator Howard T. Owens, Jr.; 26 H.R. Proc., Pt. 17, 1983 Sess., p. 6114, remarks of Representative Alfred J. Onorato. The legislature could reasonably have determined that in some circumstances it would be contrary to a child’s best interest to sever his ties to a parent even though statutory cause to do so could be found. If, for instance, no prospective adoptive home were available, and a child was likely to be subjected to a number of short-term foster placements, a court might determine that maintaining a relationship even to a noncustodial and inadequate parent was preferable, for a given child, to having no parent at all. Recent studies of children in long-term foster care have provided evidence that suggests that “continued contact with the natural parent generally promotes the child’s sense of well-being and emotional security” even for “children who were separated from their parents at a very early age and whose subsequent contacts with their parents are sporadic.” M. Garrison, “Why Terminate Parental Rights?” 35 Stan. L. Rev. 423, 461 (1983).

       Our prior cases construing this statutory language dealt with General Statutes § 17-43a (a) rather than with General Statutes § 45-61f (f). See In re Juvenile Appeal (Anonymous), 181 Conn. 638, 436 A.2d 290 (1980); In re Juvenile Appeal (Anonymous), 177 Conn. 648,420 A.2d 875 (1979). With regard to the language at issue in this case, defining “no ongoing parent child relationship,” these statutory sections are identical. Each was enacted by Public Acts 1974, No. 74-164, and nothing in the legislative history suggests that they should be construed differently. Our prior decisions interpreting this statutory ground for termination are therefore directly applicable to this appeal.

       The Appellate Court applied this standard to uphold termination where the evidence indicated that the children involved possessed only extremely negative “present memories or feelings” regarding their father, who had murdered their mother and older sister and who had frequently beaten all of the children prior to the murders. In re Juvenile Appeal (84-6), 2 Conn. App. 705, 710-11, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

       The need for such a placement might arise from such circumstances as a parent’s prolonged illness, a serious injury requiring extended rehabilitation, or the call of a single parent to active military duty.

       House Bill No. 7130 was eventually enacted, in amended form, as Public Acts 1983, No. 83-478. The stated purpose of the bill, as identified in the judiciary committee report retained in the legislative bill file in the Connecticut state library, was to standardize the criteria applied for termination of parental rights by the Probate and Superior courts.

       Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3,1983 Sess., pp. 1162-65, remarks of Raphael Podolsky. Although we ordinarily restrict our review of a statute’s legislative history to the discussions conducted on the floor of the House of Representatives or of the Senate, we have occasionally included in our considerations evidence of testimony of individuals addressing the proposed enactment in committee hearings when, as here, such testimony provides particular illumination for subsequent legislative actions on proposed bills. See In re Sheldon G., 216 Conn. 563, 570 n.6, 583 A.2d 112 (1990); Mahoney v. Lensink, 213 Conn. 548, 559 n.15, 569 A.2d 518 (1990).

       The court record reveals that the respondent filed at least three motions seeking visitation rights. Two of these, filed April 28,1989, and June 23, 1989, were not ruled upon until the order terminating the respondent’s parental rights issued on March 20,1990. A third was filed on October 29, 1989, during the pendency of the termination proceedings, when the petitioners, on advice of counsel, suspended all of the respondent’s visitation rights. The court granted that motion, restoring the previous biweekly visitation schedule and ordering one additional holiday visit, on December 18, 1989.

       See footnote 2, supra.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Bell Food Services, Inc., et al. v. Fred Sherbacow
    (14031)
    Peters, C. J., Glass, Covello, Hull and Borden, Js.

      Argued December 11, 1990
    decision released February 19, 1991

      Richard P. Weinstein, for the appellant (defendant).

      Houston Putnam Lowry, with whom, on the brief, were Kenneth J. Levine and Peter B. Rustin, for the appellees (plaintiffs).
   Borden, J.

The issues in this breach of contract action are whether the trial court correctly: (1) awarded damages to the plaintiffs, Bell Food Services, Inc. (BFS), and Philip Madder, for breach of contract; and (2) admitted two pieces of evidence as falling within exceptions to the rule against hearsay. Mackler had entered into an agreement to purchase the interest in BFS of the defendant, Fred Sherbaeow, its former president. As part of the agreement, the defendant had warranted that BFS had no outstanding corporate debt. After the purchase, the department of revenue services assessed BFS with a sales and use tax deficiency, and BFS paid $39,104.91 in settlement of the assessment. The plaintiffs then sued the defendant, relying on a covenant in the parties’ contract that BFS had no outstanding corporate debt, to recover the amount of taxes paid in satisfaction of the deficiency. The trial court found that the defendant had breached the agreement, and awarded damages to the plaintiffs.

The relevant facts are undisputed. BFS is a full-line vending machine company that sells items valued at thirty-five cents to over $2. Initially, Mackler was the sole shareholder and president of BFS. In 1978, Mackler hired the defendant to assist him in operating the business. Three years later, the defendant became president and director of BFS, purchasing a 50 percent common stock interest in the corporation. Mackler, although remaining chairman of the board, entrusted the day-to-day operations of BFS to the defendant. After that time, Madder’s only involvement with BFS consisted of reviewing the monthly financial statements of the corporation.

In 1988, the defendant and Mackler had a dispute concerning Mackler’s salary from BFS and the potential termination of his relationship with the corporation. In order to resolve the dispute, Mackler and the defendant entered into a letter of intent whereby Mackler agreed to purchase the defendant’s interest in BFS and the defendant made certain financial covenants regarding BFS. In particular, the defendant warranted that, with the exception of trade debt, BFS had no outstanding debt at the time of the closing.

Mackler assigned to BFS the right to purchase the stock of the corporation and the obligation to pay the purchase price.* Thereafter, BFS was audited by the department of revenue services and assessed with a deficiency for unpaid sales taxes on food items valued over $2, and for unpaid use taxes for equipment purchased outside Connecticut for the period of December, 1985, through December, 1988. BFS paid the asserted deficiency of $39,104.91 in sales and use taxes for the period in issue. The plaintiffs then brought suit against the defendant to recover damages, claiming breach of contract, breach of fiduciary duty, and fraudulent misrepresentation.

The trial court determined that the defendant had breached the agreement, *6and awarded the plaintiffs damages totaling $36,579.31. The defendant appealed from the judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

The defendant claims that the trial court incorrectly: (1) awarded damages to the plaintiffs for breach of contract; (2) admitted into evidence a photocopy of a sales and use tax error form of BFS pursuant to the business record exception to the rule against hearsay; and (3) admitted into evidence testimony of the present comptroller of BFS concerning statements made by the previous comptroller. We affirm the judgment of the trial court.

I

The defendant first claims that the trial court incorrectly awarded damages to the plaintiffs because neither of them suffered any damage as a result of the alleged breach of contract. In support of his claim, the defendant argues that: (1) Mackler was not injured because he suffered no pecuniary loss as a result of the alleged breach; (2) BFS was not entitled to recover because it was neither a party to the contract nor a third party beneficiary thereof; and (3) the trial court incorrectly considered the element of reliance when determining that the contract was breached. On the basis of the record presented for review, we disagree.

The defendant does not challenge the trial court’s finding that he breached the contract. He claims that Mackler was not damaged because the corporation, not he, paid the tax deficiency, and because the value of the corporation met or exceeded its value represented in the contract, even after the payment of the deficiency. This argument, however, ignores § 5 of the agreement, providing in effect that the purchase price that Mackler paid was to be reduced by the amount of “such funds necessary to prevent a breach of the [financial] covenant(s) [in § 4].” See footnote 2, supra. There was ample evidence for the court to find that the defendant’s breach of the corporate debt covenant resulted, under § 5, in Mackler’s right to recover the amount necessary to remedy that breach. The fact that BFS, rather than Mackler, paid the tax liability, as would be the case with respect to any corporate debt, does not help the defendant because the court found in effect that, had Mackler been aware of the outstanding tax liability, he would have paid less to the defendant for his stock. We note that, although the court determined that both plaintiffs were damaged, it properly awarded only one recovery to the plaintiffs jointly.

The defendant’s claim that BFS could not be awarded damages rests on his argument that BFS was neither a party to nor a third party beneficiary of the purchase agreement. This argument, however, ignores the assignment from Mackler to BFS and the trial court’s implicit finding regarding its scope.

The finding of the trial court was limited to a determination that the defendant breached the contract. Although the trial court denied the defendant’s request for articulation of its decision to award damages to both plaintiffs, the defendant failed to request review of that denial pursuant to Practice Book § 4054. We have previously held that it is the responsibility of the appellant to provide an adequate record for review. Indeed, in Stamford Apartments Co. v. Stamford, 203 Conn. 586, 590 n.l, 525 A.2d 1327 (1987), we explicitly noted that if a defendant is dissatisfied with the trial court’s answer to his request for articulation, it is his responsibility to move for review pursuant to Practice Book § 4054.

The language of the assignment; see footnote 3, supra; is unclear with respect to its possible applicability to the right to sue for breach of the financial covenants contained in the agreement. Implicit in the trial court’s judgment awarding damages to both plaintiffs is a finding that the intended scope of the assignment from Mackler to BFS was for both of them to share the obligation to pay under the contract and, correspondingly, for both of them to share the right to recover for its breach. Where an appellant has failed to avail himself of the full panoply of articulation and review procedures, and absent some indication to the contrary, we ordinarily read a record to support, rather than to contradict, a trial court’s judgment. Stamford Apartments Co. v. Stamford, supra. Since the defendant did not move for review, we read this record to incorporate that implicit finding. On the basis of that finding, we have no reason to find clearly erroneous the trial court’s conclusion that BFS, as well as Mackler, was damaged by the breach of the contract. This is particularly true since BFS actually paid the tax deficiency.

The defendant next argues that the trial court improperly considered reliance, an element of promissory estoppel, in determining whether a breach of contract existed. In its memorandum of decision, the court found that “[t]he plaintiff Mackler purchased the defendant’s stock in reliance upon the financial statement . . . which did not disclose [the plaintiff] BFS’s liability for an unpaid sales and use tax existing as of November 3,1988.” An examination of the context in which the trial court used the word “reliance,” however, defeats the defendant’s claim that “the trial judge based his award of damages largely on his finding of reliance.” Rather, it is clear that the trial court used the word “reliance” simply to express the notion that the price Mackler paid for the defendant’s stock in BFS was based on the corporation’s net worth as set forth in the financial statement, and that Mackler would have paid less had the warranty and representation concerning the outstanding corporate debt of BFS been accurate.

II

The defendant next claims that the trial court incorrectly admitted into evidence, over objection, a photocopy of a department of revenue services tax error form pursuant to the business records exception to the rule against hearsay. The tax error form in question, which was in the possession of BFS, set forth, inter alia, the amount of sales and use tax liability of BFS and the interest thereon, the specific tax errors made by BFS, the tax periods involved, the purported signature of BFS’ former comptroller, John Rosenthal, and the purported date on which the sum was remitted. This document established the amount of sales and use tax liability paid by BFS in satisfaction of the assessment by the department of revenue services.

The defendant argues that the tax error form was incorrectly admitted pursuant to the business records exception to the rule against hearsay; General Statutes § 52-180; because the plaintiffs were unable to show: (1) who made the tax error form; (2) whether the tax error form was made contemporaneously with the event recorded, namely, the payment of the assessed taxes; and (3) whether the tax error form was prepared during the regular course of business. The defendant also argues that, because the witness through whom the tax error form was admitted could not provide the above information, the record was not “satisfactorily identified” to support the admission of a photocopy pursuant to § 52-180 (c). We disagree.

“To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.” Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983). It is not necessary, however, that the witness have been the entrant himself or in the employ of the business when the entry was made. State v. Damon, 214 Conn. 146, 157, 570 A.2d 700 (1990). In applying the business records exception, “the statute [§ 52-180] should be liberally interpreted. See General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn. 593, 597, 227 A.2d 548 (1967). In part, this is due to the fact that the statute recognizes that the trustworthiness of such documents comes from their being used for business and not for litigation.” Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 388-89. Thus, the fact that the business relies on such records tends to establish their trustworthiness.

The defendant first argues that, because the plaintiffs’ witness could not testify whether the tax error form was completed by Rosenthal or the state auditor, the plaintiffs did not satisfy the requirements of § 52-180 that the particular record was made in the regular course of business and that it was the regular course of business to maké such record. This argument is without merit.

At trial, the plaintiffs introduced the tax error form through the present comptroller of BFS, Jim Downey. Downey testified that the signature on the tax error form was that of John Rosenthal, the comptroller during the tax period in issue, and that he recognized Rosenthal’s signature on the document. The defendant argues that, because on voir dire Downey testified that he did not know whether an auditor from the state could have filled out the tax error form instead of Rosenthal, the plaintiffs did not show that: (1) it was the regular course of BFS’ business to prepare such a record; and (2) the record was prepared in the ordinary course of BFS’ business.

The defendant’s argument ignores the fact that Downey identified the signature on the tax error form as that of Rosenthal. Therefore, whether Rosenthal filled out the form himself or adopted the information contained therein pursuant to his agency powers as comptroller, it was within the trial court’s discretion to determine that the tax error form was BFS’ record. Furthermore, Downey testified that the document was kept in the ordinary course of BFS’ business because it was required by law to do so. Indeed, General Statutes § 12-426 (3) provides that “[e]very seller [and] every retailer . . . shall keep such records, receipts, invoices and other pertinent papers . . .” relating to sales and use taxes. Therefore, in light of the general proposition that the business records exception is to be interpreted liberally; Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 388; the trial court did not abuse its discretion in determining that the tax error form was kept in the ordinary course of business.

The defendant also argues that the plaintiffs did not show that the tax error form was prepared contemporaneously with the occurrence of the event recorded, namely, the payment of the sales and use taxes. This claim is likewise without merit. The tax error form was made to record BFS’ mistakes in its past sales and use taxes, and to calculate the amount of taxes and interest thereon that BFS was responsible to pay to the department of revenue services. The form was signed by Rosenthal on June 28, 1989, and also contains a notation that BFS paid the taxes owed on that date. It was within the discretion of the trial court to determine that the tax error form was made contemporaneously with the payment of the owed sales and use taxes that it recorded. The defendant’s argument that the court improperly admitted the photocopy of the document as not “satisfactorily identified” is based on the assertion that the witness did not identify when or by whom the document was made. Because of our determination that the plaintiffs did, in fact, demonstrate that the document was made in the regular course of BFS’ business, that Rosenthal either filled out the tax error form or adopted its contents upon signing it, and that it was made contemporaneously with the event it recorded, however, this claim is without merit.

HI

The defendant next claims that the trial court incorrectly admitted into evidence certain, hearsay statements pursuant to an “admission against interest” exception, and that the admission of this evidence requires reversal of the judgment. While we agree that the evidence was inadmissible hearsay, we conclude that the admission does not constitute sufficient grounds for reversal.

The trial court allowed the plaintiffs to introduce testimony by BFS’ present comptroller, Downey, that the former comptroller, Rosenthal, told him that BFS paid the $39,104.91 in sales and use taxes because it “had no defense on that part of the tax. It was obviously not paid, period.” Upon objection by the defendant, the plaintiffs argued that the statements were admissible as an “admission against interest,” and the court allowed the evidence.

“A statement made out of court that is offered to establish the truth of the facts contained in the statement is hearsay.” C. Tait & J. LaPlante, Connecticut Evidence (1st Ed.) § 11.1; see also Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). In this case, the out-of-court statements by Rosenthal were offered to prove that BFS had not paid the taxes and had no defense for not doing so, and the plaintiffs do not assert otherwise. Therefore, this hearsay evidence was inadmissible unless it fell within one of the recognized exceptions to the hearsay rule.

At trial, the plaintiffs asserted that the statements were admissible as an exception to the rule against hearsay because they constituted “admissions against interest.” We have previously held the term “admissions . . . against interest” to be an inappropriate frame of reference; Falker v. Samperi, 190 Conn. 412, 424 n.16, 461 A.2d 681 (1983); and in this circumstance we will instead deem the relevant evidentiary referrent to be to an admission by a party opponent.

The “admissions of a party opponent” exception requires that the hearsay evidence be offered by the party who is the opponent to the party declarant. State v. Tyson, 23 Conn. App. 28, 34, 579 A.2d 1083 (1990) (defendant could not offer own statement under admission exception); State v. Brown, 22 Conn. App. 521, 523, 577 A.2d 1120 (1990). Here, the offering parties were the plaintiffs, who were offering the hearsay testimony, not of the defendant Sherbacow, their opponent, but of Rosenthal, who was not a party opponent to them. In fact, when Rosenthal purportedly made the statement, he was still employed by BFS, a factor that supports the conclusion that he was not an opponent of either Mackler or BFS.*

We conclude, however, that the admission of the hearsay testimony by Downey constituted harmless error. The primary issue in this breach of contract case was whether the defendant was responsible to BFS for the amount of sales and use taxes owed to the state by virtue of his covenant to Mackler that BFS had no outstanding corporate debt as of the date of the contract. The defendant presented no evidence that the sales and use taxes paid by BFS for the period of December, 1985, through December, 1988, were not actually owed; rather, he primarily contested whether he should be held responsible for reimbursing BFS therefor. The plaintiffs established their case that the taxes were owed in the amount claimed principally through the proper admission of the tax error form. The inadinissible hearsay evidence was simply cumulative and supplementary to that evidence, and it is unlikely that it affected the court’s judgment.

The judgment is affirmed.

In this opinion the other justices concurred.

       The letter of intent provided in relevant part:
      “SECTION 2 - PURCHASE PRICE:
      PHILIP MACKLER shall pay to FRED SHERBACOW the following amounts (Purchase Price):
      $750,000.00 at the Closing
      $200,000.00 on or before one (1) year from Closing
      $200,000.00 on or before two (2) years from Closing
      $250,000.00 on or before three (3) years from Closing
      $250,000.00 on or before four (4) years from Closing
      $450,000.00 on or before five (5) years from Closing .....

        SECTION 4 - FINANCIAL COVENANTS:
      FRED A. SHERBACOW warrants and represents to PHILIP MACKLER that:
      (a) Bell Food Services, Inc. shall have a net equity of at least $1,500,000.00 as of the date of the Closing . . .
      (h) Bell Food Services, Inc. has no corporate debt outstanding as of the date of the Closing, (except for trade debt incurred in the ordinary course of business) ....
      SECTION 5 - BREACH OF COVENANTS:
      If the covenants in Section 4 are breached, then such funds necessary to prevent a breach of the covenants) shall be deducted from the Purchase Price starting with the most recent payment.”

       The assignment provided as follows:
      “ASSIGNMENT
      I, Philip Mackler of 13029 Bald Cypress Lane, Naples, Florida, 33999, hereby assign to Bell Food Services, Inc. of Commerce Street, Glastonbury, Connecticut 06033 all of my rights to purchase the Stock of Fred A. Sherbacow in Bell Food Services, Inc. and delegate to Bell Food Services, Inc. all of my obligations to pay any sums to Fred A. Sherbacow pursuant to our Settlement Agreement entitled ‘Letter of Intent’ dated September 28, 1988.
      Dated at Farmington, Connecticut as of this 31st day of October, 1988.
      /s/Philip Mackler
      Philip Mackler
      ATTESTED BY:
      BELL FOOD SERVICES, INC.
      /s/Philip Mackler
      Philip Mackler
      Its Duly Authorized President”

       The tax error form submitted to the department of revenue services showed that BFS was responsible for $31,719.89 in past sales and use taxes and $7385.02 in interest accrued.

       The trial court held that the plaintiffs had not proven their claims of breach of fiduciary duty and fraudulent misrepresentation.

       It is unclear from the record why the judgment was in the sum of $36,579.31 rather than $39,104.91, the amount BFS paid in satisfaction of its deficiency.

       Practice Book § 4054 provides in pertinent part: “[motion for review]— REVIEW OF MOTION FOR RECTIFICATION OF APPEAL OR ARTICULATION
      “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may make a written motion for review to the supreme court, to be filed with the chief clerk of the supreme court, and the supreme court may, upon such a motion, direct any action it deems proper.”

       The interpretation of the assignment, absent statutory warranty or definitive contractual language, was a question of the intention of the parties to it and, therefore, a question of fact. See Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). In order for the defendant to prevail on this issue, therefore, he would have to show that the trial court’s implicit interpretation of the assignment was clearly erroneous. A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 609, 577 A.2d 709 (1990).

       The form at issue is entitled “Request for Application of Payment to Certain Errors Discovered During Audit Examination.” At the top of the form is printed the address for the Connecticut department of revenue services.

       General Statutes § 52-180 provides: “admissibility op 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.
      “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”

       It is clear from an examination of the transcript and from the brief of the plaintiffs that they were not arguing that the evidence was admissible under the declarations against interest exception to the rule against hearsay. The fact that the plaintiffs did not attempt to establish the unavailability of the declarant, Rosenthal, a primary element of the declarations against interest exception; C. Tait & J. LaPlante, Connecticut Evidence (1st Ed.) § II .6; further supports our conclusion that the plaintiffs were relying solely on the admissions of a party opponent exception to the rule against hearsay.

       Since we conclude, however; see text infra; that the admission constitutes harmless error, we need not fully consider the plaintiffs’ argument that Rosenthal was somehow an agent of Sherbacow for purposes of the admission by a party opponent exception. Suffice it to say that we can find no support in this record for that assertion.

       The taxes paid by BFS to the department of revenue services were for: (1) use taxes associated with the purchases of supplies and equipment; and (2) sales taxes associated with the sale of individual food items costing $2 or above.
      The defendant did not introduce evidence that the amount of taxes actually paid by BFS in settlement of the audit was excessive or incorrect. Additionally, on cross-examination, the defendant agreed that purchases of equipment from outside Connecticut are subject to the use tax, and that meals over $2 are subject to the sales tax. Furthermore, when asked what steps he took to ensure that the sales tax due on meals over $2 was paid, the defendant responded that “[qjuite honestly, it counted for such a small percentage of our total business that I just overlooked it,” and that “I never even thought of it.” The defendant also testified that there was no system in place at BFS to check whether the use tax was paid on the equipment that it purchased out of state.


author: Peters, C. J.

text:
    Joseph Trigila v. City of Hartford
    (14117)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.

      Argued January 11
    decision released February 19, 1991

      Patrick L. Kennedy, for the appellant (plaintiff).

      Richard M. Cosgrove, senior deputy corporation counsel, for the appellee (defendant).
   Peters, C. J.

The only issue in this case is whether a union member may seek judicial relief for a statutory claim of employment discrimination without first availing himself of the grievance procedures established by a collective bargaining agreement. The plaintiff, Joseph Trigila, is a fiscal officer in the department of housing and community development of the defendant city of Hartford. His complaint alleges that, by requiring him to take an unpaid leave of absence during his candidacy for state elective office, the defendant violated the antidiscrimination provisions of General Statutes § 2-Sa. In response, the defendant filed a motion to dismiss for lack of subject matter jurisdiction, premised on the plaintiffs failure to exhaust administrative remedies prescribed in the collective bargaining agreement negotiated between his union and the defendant. The trial court granted the defendant’s motion to dismiss and rendered judgment in its favor. The plaintiff appealed to the Appellate Court and we transferred his appeal to this court pursuant to Practice Book § 4023. We affirm the trial court’s judgment.

The complaint and the motion to dismiss contain allegations of fact that are undisputed. On July 28, 1988, the plaintiff, as a classified employee of the defendant, was a member of a collective bargaining unit represented by the Hartford Municipal Employees Association, Inc. A collective bargaining agreement between the plaintiffs union and the defendant provides a grievance procedure for the settlement of disputes concerning its “application, meaning or interpretation.” Article II, § 2.1 It also incorporates by reference “all provisions of Federal, State and City laws and ordinances . . . not otherwise specifically superseded by the terms of this Agreement.” Article III, § 3.1

Relying on a municipal charter provision forbidding classified city employees from continuing in municipal service while running for political office,* * the defendant required the plaintiff to take an unpaid leave of absence when he announced his intention to become a candidate for the office of state representative. The plaintiff returned to municipal service on November 14, 1988, after having lost his bid for elective office. Without attempting to invoke the grievance procedures of the collective bargaining agreement, the plaintiff filed the present lawsuit alleging that the defendant’s violation of § 2-3a entitled him to recover the wages he lost during the period of his involuntary suspension.

The trial court, in its memorandum of decision, concluded that the plaintiff’s claimed right, under § 2-3a, to pursue his electoral campaign without being “discriminate[d] against, discipline[d] or discharge^]” by the defendant, raised an issue that fell within the terms of the collective bargaining agreement. Accordingly, the court ruled that the agreement’s procedures for the administrative resolution of grievances arising out of the employment relationship governed the plaintiff’s claim. Because failure to exhaust applicable administrative remedies deprives a court of subject matter jurisdiction, the court granted the defendant’s motion to dismiss the plaintiffs complaint.

The plaintiff’s appeal from the judgment of the trial court raises only one narrow issue. He concedes that, if he were pursuing the validity of his unpaid leave as a contract claim, he would have had an effective administrative remedy within the terms of the collective bargaining agreement. He maintains, however, that he is entitled to pursue a separate and distinct statutory cause of action for a violation of § 2-3a, which is not expressly encompassed by the collective bargaining agreement and for which the grievance procedure provides no specific remedy.

The issue that the plaintiff raises has two analytic subparts. First, as a general matter, do the parties to a collective bargaining agreement have the authority to include the resolution of questions of law relating to statutory construction and application within contractually determined grievance and arbitration procedures? Second, does the collective bargaining agreement in this case manifest the parties’ intention to confer such authority on the designated grievance and arbitration procedures? In our view, the answer to both of these questions is yes.

Unions and their employers have broad contractual authority to provide administrative remedies for disputes arising out of the employment relationship. That authority encompasses issues of law as well as of fact. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145-46, 523 A.2d 1271 (1987); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106-107, 438 A.2d 1171 (1981). Before pursuing even alleged violations of state statutory procedures and of constitutional rights to due process and equal protection, “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); Cahill v. Board of Education, 198 Conn. 229, 236-39, 502 A.2d 410 (1985). The trial court therefore correctly rejected the plaintiffs contention that the denomination of a claim as statutory automatically authorizes the bypass of collective bargaining procedures.

Although the administrative procedures established by the parties’ collective bargaining agreement can provide remedies for many statutory and constitutional claims; but see Stratford v. Local 134, IFPTE, 201 Conn. 577, 585-86, 519 A.2d 1 (1986); Carofano v. Bridgeport, 196 Conn. 623, 637-38, 495 A.2d 1011 (1985); Caldor, Inc. v. Thornton, 191 Conn. 336, 344-45, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); the legislature can confer upon an employee a substantive statutory right independent of existing labor relations statutes and the administrative procedures associated therewith. In Shortt v. New Milford Police Department, 212 Conn. 294, 304-305, 562 A.2d 7 (1989), we concluded that the test is whether the legislature intended, on the one hand, to provide a substantive right independent of collective bargaining or, on the other hand, to provide an enhanced remedy ancillary to and enforceable conjointly with rights established as a matter of collective bargaining. We applied this test in Shortt to hold that a statutory claim for unpaid wages under General Statutes § 31-72 furnished only an additional remedy and thus required exhaustion of applicable grievance and arbitration procedures. Id., 305-10. The plaintiff in this case has not argued that § 2-3a establishes the kind of independent substantive right that Shortt envisaged as appropriate for judicial rather than administrative resolution in the first instance. The right to contest the merits of a suspension, like the right to collect wages, is integral to the employer-employee relationship. Id., 310; see also School Administrators Assn. v. Dow, supra, 382-83. We therefore agree with the trial court’s implicit holding that the parties in this case were empowered, in their collective bargaining, to negotiate a contract that included the plaintiff’s statutory claim under § 2-3a within contractually defined grievance and arbitration procedures.

We turn therefore to an examination of the terms of the collective bargaining agreement between the plaintiff’s union and the defendant to determine whether its provisions manifest the parties’ intention to include statutory claims about the validity of an unpaid leave within the agreement’s designated grievance and arbitration procedures. The trial court correctly concluded that the agreement manifested such an intent.

We note, first, the breadth of the provisions in article II of the collective bargaining agreement, entitled “Grievance Procedure.” Section 2.1 includes therein “[a]ny grievance or dispute which may arise between the parties concerning the application, meaning or interpretation of this Agreement . . . .” Section 2.4 provides in part: “Grievances involving discharge, suspension or demotion shall be processed at Step 3 of the grievance procedure and may be submitted thereafter to arbitration in accordance with the provision of Step 4 of the grievance procedure. No employee may be reprimanded, suspended, demoted or discharged except for just cause.” It is difficult to imagine contractual wording that would more explicitly include disputes about the validity of a mandated unpaid leave of absence within the grievance procedure. We have only recently construed an arbitration clause referring to “ ‘any dispute between the parties hereto as to the interpretation or application of the Agreement,’ ” as “broad and all encompassing” and persuasive evidence of “the parties’ intent to have their disputes resolved, not by the courts but by an arbitration panel.” Emcon Corporation v. Peqnataro, 212 Conn. 587, 592, 562 A.2d 521 (1989).

The collective bargaining agreement furthermore includes § 3.1 within its substantive provisions for “Personnel, Pay and Benefits.” Section 3.1 expressly obligates both parties to “recognize and adhere to all provisions of Federal, State and City laws and ordinances which are in effect on the date this Agreement is ratified by the Association and which are not otherwise specifically superseded by the terms of this Agreement.” The defendant presumably relied upon this section in invoking chapter XVI, § 12 of the Hartford charter, which forbids classified city employees from continuing in municipal service while running for public office. Section 3.1 would, however, have been equally available to the plaintiff to challenge the validity of his enforced leave of absence in light of the antidiscrimination provisions of § 2-3a of the General Statutes. The placement of § 3.1 in article III, alongside sections defining entitlements to longevity payments, insurance, and pension benefits, demonstrates that § 3.1 was intended to be an operative part of the substantive terms of the collective bargaining agreement. Thus, any dispute about the applicability of a charter provision or a statute becomes a “dispute . . . between the parties concerning the application, meaning or interpretation of this Agreement” within the terms of § 2.1 defining grievable claims. This construction of the collective bargaining agreement accords with our policy of encouraging the use of collective bargaining and contractually designated grievance procedures as an alternative method of settling disputes that avoids the formalities, delay, expense and vexation often associated with ordinary litigation. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415, 544 A.2d 186 (1988); Administrative & Residual Employees Union v. State, 200 Conn. 345,349, 510 A.2d 989 (1986); International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 62-63, 82 A.2d 345 (1951).

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 2-3a provides: “employer not to discriminate AGAINST CANDIDATES FOR OR MEMBERS OF THE GENERAL ASSEMBLY. No employer of twenty-five or more persons shall discriminate against, discipline or discharge any employee because such employee is a candidate for the office of representative or senator in the general assembly, or because he is elected to such office, or because he loses time from work in order to perform the duties of such office, provided the failure of such employer to pay wages or salaries for any such time lost shall not be considered a violation of this section. No such employee shall lose any seniority status which may have accrued to him and, where the function of such employee is performed in work shifts, such employee shall be given a choice of shifts. Any employer violating the provisions of this section shall reinstate any employee so discriminated against, disciplined or discharged to his full status as an employee as of the date of such violation and shall pay him any wages withheld or diminished retroactive to the date of such violation. Any employee nominated to such office shall, within thirty days following his nomination, give written notice thereof to his employer.”

       The plaintiff's union and the defendant entered into one collective bargaining agreement for July 1,1985, to June 30,1988, and another for the period July 1,1988, to June 30,1991. Although the latter agreement was not approved until January 19,1989, this delay left the earlier agreement in effect until that time. General Statutes §§ 7-474, 7-475. Because the relevant provisions of the two collective bargaining agreements are identical with respect to the scope of their grievance procedures, we refer to the collective bargaining agreement in the singular.

       The Charter of the city of Hartford is a special act of the General Assembly. 25 Spec. Acts. 1947, No. 30, as amended by 34 Spec. Acts 1969, No. 140. Chapter XVI, § 12, entitled “Prohibited Practices,” provides in relevant part: “No officer or employee in the classified service of the city shall continue in such position after becoming a candidate for election to any public office.”

       The text of General Statutes 5 2-3a is set out in footnote 1, supra.

       See footnote 3, supra, for the text of the charter provision.


author: Covello, J.

text:
    State of Connecticut v. Lorne Dyson
    (14107)
    Peters, C. J., Callahan, Covello, Borden and Santaniello, Js.
    Argued December 12, 1990
    decision released February 19, 1991

      Susan Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, for the appellee (state).
   Covello, J.

This is the appeal of the defendant, Lome Dyson, from his conviction of accessory to manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The issues presented are: (1) did the trial court properly instruct the jury regarding the mental state necessary for manslaughter in accordance

with General Statutes §§ 53a-55 and 53a-56;* (2) did the trial court properly instruct the jury concerning the state’s burden of proof; and (3) did the trial court properly instruct the jury concerning witnesses’ credibility and the defendant’s failure to testify. We conclude that the trial court’s instructions were proper and affirm the conviction.

The jury might reasonably have found the following: On November 17, 1987, the victim, Otis Pierce, was shot in the head while talking with some friends in the Van Block Avenue area of Hartford. Fourteen days later, the victim died. There was evidence that the defendant was one of two assailants present in the area with a gun at the time of the shooting, that the assailants were attempting to scare the decedent and that one of them shot the victim by mistake.

The jury returned a verdict of guilty of the lesser included offense of accessory to manslaughter in the first degree in violation of § 53a-55 (a) (3) and conspiracy to commit manslaughter in the first degree. The jury found the defendant not guilty of the three attempted assault charges and conspiracy to commit assault. The trial court thereafter granted the defendant’s motion for acquittal of the charge of conspiracy to commit manslaughter because conspiracy to commit a reckless manslaughter is not a cognizable crime. The trial court then sentenced the defendant to twenty years imprisonment on the remaining conviction. The defendant appealed to the Appellate Court. We thereafter transferred the matter to this court pursuant to Practice Book § 4023.

I

The defendant first claims that the trial court improperly instructed the jury on the mental state required for manslaughter. In support of this claim, the defendant argues that the court: (1) deviated from the language of the statute by referring to § 53a-55 (a) (3) as “reckless indifference manslaughter”; (2) improperly stated that “[t]he gist of the charge is recklessness” when referring to both first degree and second degree manslaughter; and (3) improperly instructed the jury that first degree manslaughter under § 53a-55 (a) (3) is a lesser included offense of first degree manslaughter under § 53a-55 (a) (1).

“It is well established that ‘[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.’ State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). ‘ “The charge is to be read as a whole and individual instructions are not to be judged in ‘artificial isolation’ from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); State v. Holmquist, 173 Conn. 140,151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 635 (1974).” State v. Estep, [supra, 652].’ State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982).” State v. Jasper, 200 Conn. 30, 37, 508 A.2d 1387 (1986).

The defendant argues that the trial court’s reference to the charge as “reckless indifference manslaughter” deviated from the language of § 53a-55 (a) (3) and confused the jury. We note that the court used the term “reckless indifference manslaughter” only once in its main charge. In this instruction, the court recited the relevant part of § 53a-55 (a) (3) and stated that the state must demonstrate that the defendant acted with extreme indifference to human life and that his conduct was reckless. The court then recited in detail the definition of recklessness. In defining second degree manslaughter, the court expressly stated that the difference between it and first degree manslaughter “is to extreme indifference to human life, on the one hand, and reckless engagement in conduct which creates a substantial risk of death, on the other hand.” We conclude that the charge, taken as a whole, accurately described the necessary elements of the charged crimes and effectively differentiated between the various degrees. As a result, it is not reasonably probable that the jury could have been misled by the entire charge. State v. Spates, 176 Conn. 227, 237, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979).

The defendant next claims that the court highlighted the element of recklessness over the charge of extreme indifference to human life by stating, in reference to first degree manslaughter, that “[t]he gist of the charge is recklessness.” What the court actually said was: “Now, in order for the defendant to be found guilty of this crime the State must prove beyond a reasonable doubt, one, that the defendant’s conduct evinced an extreme indifference to human life, and, two, that the defendant’s conduct created a grave risk of death to another person, and, three, that the defendant caused the death of Otis Pierce. And, four, that the death was caused by the reckless conduct of the defendant. There is no element of specific intent involved in this Statute. The gist of the charge is recklessness.” When read in context, the court’s statement is an appropriate attempt to separate its instruction on manslaughter from its earlier instruction on the specific intent crime of murder. Furthermore, as noted above, the court expressly stated that the state must prove both the extreme indifference and recklessness elements of the statute; there is, therefore, no reason to suspect that the jury was confused by the court’s instruction.

The defendant also argues that the trial court improperly charged the jury that it had to consider specific intent manslaughter under § 53a-55 (a) (1) before reckless manslaughter under § 53a-55 (a) (3). While the court’s statement, standing alone, might have been inaccurate, we note that the trial court several times stated that § 53a-55 (a) (1) and (3) were of equal seriousness. Construed in its entirety the charge was not improper.

II

The defendant’s second claim is that the trial court improperly used a “two-inference” instruction concerning the state’s burden of proof. The trial court stated in pertinent part: “The presumption of innocence also requires that when you consider all of the evidence— and it is capable of two reasonable interpretations, one of which is consistent with innocence, you must adopt the interpretation of innocence. The presumption remains with the defendant throughout the trial unless you are satisfied beyond a reasonable doubt of the defendant’s guilt from all the evidence in the case.” The defendant cites in support of his argument the position of the Court of Appeals for the Second Circuit which has stated that “such an instruction by implication suggests that a preponderance of the evidence standard is relevant, when it is not. Moreover, the instruction does not go far enough. It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but not strong enough to be beyond a reasonable doubt.” United States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987); United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989).

In Kahn, the Second Circuit Court of Appeals held that, while a “two-inference” instruction standing alone may be improper, there is no error if the state’s burden of proof is otherwise properly explained. United States v. Khan, supra, 92. This, in effect, is an extension of the proposition that a jury charge must be considered in its entirety and that challenged language must be read in that context. In any event, such an instruction that principally serves to benefit the defendant is proper under our case law. See, e.g., State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984), where we noted “ ‘[i]t is, of course, true . . . that any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail. State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 [1929].’ State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955).” As acknowledged by the defendant, the trial court several times correctly stated that the state had the burden to prove each element of the crimes charged beyond a reasonable doubt. The charge as a whole correctly instructed the jury as to the state’s burden of proof.

III

The defendant’s final claim is based upon the following instruction: “Again, to the subject of interested witnesses. Now, you heard mention that one or another of the witnesses is an interested witness. And on the basis of such characterization counsel has asked you to give lesser weight to such witnesses’] testimony. Obviously, the defendant himself has the primary interest in the outcome. Whether other persons are close enough to him or sufficiently dependent upon the outcome or economically or emotionally or otherwise involved with him to be considered interested is for you to decide and determine on your observation of the basis of the evidence as well as upon your observation of his attitude and conduct. He has not testified in this case so obviously some of these are—it’s not possible for you to do. The whole subject of the witness interest and its affect [sic] upon his testimony is for you to decide. Again, he hasn’t testified so that portion would be inapplicable.”

The defendant argues that his rights under the fifth and fourteenth amendments to the United States constitution, as well as his rights under article first, §§ 8 and 9 of the Connecticut constitution, were abridged by the trial court’s comments on the defendant’s failure to testify and the court’s comments linking the interested witnesses to the defendant. The defendant did not raise these exceptions at trial. He claims review under the doctrines presented in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In order to prevail on these claims the defendant must meet a four-prong test. Under the fourth prong, the defendant may not prevail if the state can demonstrate that any error was harmless beyond a reasonable doubt. Id., 240.

Admittedly, the trial court initially did refer to the defendant’s failure to testify. The court immediately corrected the misstatement, however, by saying that the reference to the defendant was inapplicable. Any possible prejudice resulting from these comments was eliminated by the court’s subsequent, thorough instructions to the jury that it was to draw no adverse inference from the defendant’s decision not to testify. We conclude that the court’s curative instruction rendered any misstatement harmless beyond a reasonable doubt.

We conclude, moreover, that the court’s instructions regarding the credibility of the witnesses were proper. Read in their entirety, the instructions charged the jury to weigh the credibility of all witnesses, both those of the defendant and those of the state. A similar argument was raised in State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). In Stepney, the defendant’s wife was singled out by name in a charge concerning the credibility of witnesses. We noted that the court has some discretion in commenting on the credibility of witnesses and determined that a credibility instruction that was “surrounded by careful qualifying language” and “repeatedly reminded the jury that [it was] the sole [judge] of credibility” was acceptable. Id., 248. Likewise, in this case the court carefully qualified its instruction and charged the jury that it was the sole judge of credibility. We conclude, consequently, that any error was harmless and that the defendant’s unpreserved claims are not reviewable.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: CLASS B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”

       “[General Statutes] Sec. 53a-56. manslaughter in the second degree: CLASS C felony, (a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide.
      “(b) Manslaughter in the second degree is a class C felony.”

       The court further stated that “[a] reasonable doubt is a doubt for which a valid reason can be assigned.” The defendant did not object to this at trial. However, “[w]e have upheld a similar charge in the face of a constitutional challenge in State v. Derrico, 181 Conn. 151,170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). As we said in Derrico, the ‘instruction essentially defined a reasonable doubt as a doubt founded on reason as contrasted with a purely speculative doubt.’ Id., 171.” State v. Findlay, 198 Conn. 328, 346, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).