SHARON DENUNZIO v. PETER DENUNZIO ET AL.
(SC 19388)
Supreme Court of Connecticut
Arguеd September 11, 2015—officially released January 12, 2016
Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
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Opinion
McDONALD, J. In 2007, the legislature adopted a paradigmatic shift in its approach to conservatorship appointments, including significant modifications to the circumstances and manner in which they may be made. This certified appeal requires us to consider how the substantive and procedural amendments to the conservatorship scheme set forth in
The plaintiff, Sharon DeNunzio, appeals from the judgment of the Appellate Court affirming the trial court’s judgment which, in turn, affirmed the Probate Court’s decision to appoint the defendant, the plaintiff’s former husband, Peter DeNunzio, conservator of their adult son, Douglas DeNunzio.1 On appeal, the plaintiff claims
The record reveals the following undisputed facts and procedural history. For many years, Douglas has manifested symptoms of mental distress, including paranoia, extreme anxiety, and a tendency to perseverate, meaning to obsess over a particular topic, most notably, his health. The plaintiff and the defendant, whose marriage was dissolved in 2003 when Douglas was still a minor, have been involved in a protracted dispute over whether Douglas’ symptoms were caused by chronic Lyme disease and/or psychological and/or developmental disorders. During the early stages of this dispute, the trial court in the dissolution action modified its custody orders to confer on the defendant sole decision-making authority over medical decisions concerning Douglas. The trial court in the dissolution action subsequently held the plaintiff in contempt of that order after she took Douglas to a pediatrician without the defendant’s consent, finding that the plaintiff’s ‘‘preoccupation with Douglas’ health’’ was unhealthy for Douglas.
Douglas’ numerous treating physicians have determined that his symptoms were caused by schizophrenia and an Asperger spectrum disorder. The defеndant accepted these physicians’ opinions and agreed with their advice to place Douglas on a regimen of antipsychotic medications, which appeared to them to stabilize Douglas’ condition. With the plaintiff’s consent, the defendant placed Douglas in a residential education and treatment facility (school) that holds itself out as specializing in the treatment of young males with developmental, psychological and learning disorders. The school’s staff has concluded that Douglas was making good progress under this course of treatment.
Although the plaintiff agrees that Douglas is on the autism spectrum, she disagrees with the defendant with respect to the cause of that condition and Douglas’ symptoms of mental distress. Specifically, the plaintiff is convinced that these conditions
In 2011, shortly after Douglas’ twenty-first birthday, the defendant filed an application in the Probate Court seeking to be appointed as Douglas’ conservator. The plaintiff filed an objection to that application, and filed an application seeking her own appointment. The Probate Court thereafter appointed an attorney and a guardian ad litem for Douglas, Louise T. Truax and Richard J. Margenot, respectively.
Because Douglas’ representatives and parents all stipulated that Douglas’ condition was such that he needed a conservator, the evidentiary hearing on the applications focused principally on the question of who the conservator should be. Truax informed the court that Douglas had refused to express a preference regarding which one of his parents should be appointed. Both the plaintiff and the defendant tеstified at length regarding Douglas’ medical and educational history, and voiced their respective views about the underlying cause of his symptoms. The defendant also testified that he had taken Douglas to hundreds of medical appointments over the years, that he had discussed Douglas’ wishes regarding his medical treatment with Douglas as recently as the previous week, and that he was willing to commit his time and financial resources to ensure that Douglas received appropriate medical care. The plaintiff testified that Douglas wanted to be taken off of his current medication and treated for Lyme disease, that she would replace Douglas’ medical team if appointed, and that she believed that the defendant was not committed to following Douglas’ interests or promoting his independence.
In support of his application, the defendant offered testimony from Douglas’ current treatment providers. These providers contrasted their observations of the defendant’s commitment to а course of treatment that had helped Douglas and Douglas’ calm state when under the defendant’s care with their contrary observations of the plaintiff. Nancy O’Hara, a physician who specializes in autism and neurological development issues and who had treated Douglas for many years, testified that, although Douglas previously had Lyme disease, it had been effectively treated. O’Hara testified that the plaintiff repeatedly had violated instructions not to discuss medical treatment with Douglas because it caused him severe anxiety. O’Hara also testified that she did not believe the plaintiff would adhere to her advice that Douglas should continue his antipsychotic medications. O’Hara further testified, over the plaintiff’s objection, that it was her opinion that the defendant, who had adhered to O’Hara’s instructions, should be appointed Douglas’ conservator. O’Hara’s concerns about the plaintiff’s conduct as it adversely effected Douglas’ state of mind was echoed in testimony from Shahrzad Yаmini, a psychiatrist at Douglas’ school, and Joanne Boelke, a clinical therapist and social worker at the school.
In support of the plaintiff’s application, the court heard testimony from two psychiatrists who had examined Douglas eighteen months and three years prior to the hearing, respectively. In addition to their observations based on those examinations, these experts offered opinions based on information that had been provided to them by the plaintiff. Carl Mueller testified that Douglas had an abnormality on the surface of his brain that could have
On the last day of the evidentiary hearings, Margenot filed a guardian ad litem report over the plaintiff’s objection. The report indicated that Margenot had interviewed various medical and educational professionals, Douglas’ family members, and Douglas himself, and had reviewed various documents, including deposition testimony. The report stated that, based on this informa-tion and the evidence adduced during the preceding evidentiary hearings, Margenot’s opinion was that it was ‘‘in [Douglas’] best interests to appoint [the defendant] as [Douglas’] [c]onservator of the [p]erson and [e]state . . . .’’ The plaintiff claimed that the report was inadmissible because it contained hearsay and an opinion on the ultimate issue in the case. The Probate Court indicated that it believed that it was proper for a guardian ad litem to offer such an opinion, but withhеld a definitive ruling on the admissibility of the report pending a review of the rules of evidence. Although Margenot did take the stand so that the plaintiff could question him regarding the report, it was never admitted into evidence.
The Probate Court subsequently issued a decision finding by clear and convincing evidence that Douglas needed a conservator of both the person and estate and appointed the defendant as conservator. The Probate Court’s decision cited testimony related to Douglas’ psychological and developmental conditions and symptoms, the harmful effect that his parents’ conflict had on him, and concerns about the plaintiff’s interference with Douglas’ current course of medical treatment. The decision noted the filing of Margenot’s report and the conclusion therein that the defendant should be appointed conservator. The Probate Court concluded its decision by stating: ‘‘This court further finds that there is no doubt that both parents care and love their son deeply; thаt they cannot agree on the proper treatment for [Douglas] as they disagree with each other on [Douglas’] current diagnosis; that the [plaintiff’s] constant second-guessing of the professionals in charge of [Douglas’] care, causes inconsistent care, duress, anxiety and perseveration to [Douglas]; and that medical professionals involved with [Douglas’] current care and supervision have testified that it is in the best interest of [Douglas] to have the [defendant] appointed as conservator. This court therefore appoints [the defendant] as the conservator of the person and estate of [Douglas] to serve without bond.’’ (Emphasis added.) The decision then set forth the conservator’s powers, followed by two statements simply noting, without elaboration, that the court had considered the factors set forth in
The plaintiff appealed from the Probate Court’s decision to the trial court pursuant to
The plaintiff appealed to the Appellate Court, reiterating her claim that consideration of Margenot’s report was improper. In connection with that claim, the plaintiff also asserted that the Probate Court’s decision improperly had been based on a standard that no longer existed following the enactment of
The Appellate Court affirmed the trial court’s judgment, concluding that the Probate Court’s decision had been rendered in conformity with the conservatorship scheme as modified by
The Appellate Court further concluded that Margenot properly could rely on hearsay statements in reaching his opinion, and that there was no indication in the record that the Probate Court had relied on any hearsay in the report for substantive purposes in deciding to appoint the defendant. Id., 414.
In connection with its conclusion that the Probate Court could use the specialized knowledge acquired by Margenot to assist it with its determination as to what appointment would be in Douglas’ best interests, the Appellate Court stated: ‘‘To the extent that the plaintiff suggests that the court is confined to the factors set forth in
We subsequently granted the plaintiff’s petition for certification to appeal, limited to the following issues: (1) ‘‘Did the Appellate Court properly conclude that the [Probate Court properly could use] the ‘best interest[s] of the conservatee’ standard as [a consideration and a guide in examining the statutory factors]?’’; and (2) ‘‘Did the Appellate Court properly determine that . . . the plaintiff’s substanti[al] rights were not prejudiced by the Probate Court’s consideration of . . . Margenot’s report, which was not admitted into evidence?’’4 DeNunzio v. DeNunzio, 314 Conn. 926, 101 A.3d 271 (2014). We conclude that the statutory factors adopted by the legislature in
Before turning to the merits of the plaintiff’s claim, it is useful to set forth a brief overview of the relevant 2007 amendments to the conservatorship process, and the legal context in which those changes were adopted. See
Public Act 07-116 evidenced a fundamental shift in policy regarding the capacity of conserved persons and their concomitant rights. As our courts previously have recognized, the legislature made comprehensive substantive and procedural changes to the conservatorship scheme designed to require probate courts to respect individuals’ preferences, impose the least restrictive means of intervention, and provide more transparency and accountability in the conservatorship process. See Kortner v. Martise, 312 Conn. 1, 53–56, 91 A.3d 412 (2014) (discussing legislative history of
Public Act 07-116, § 16, also required the Probate Court to follow more formal procedures, under which the rules of evidence for civil proceedings apply and testimony is taken under oath. Proceedings relating to the selection of a conservator are required to be conducted on the record;
I
With that background in mind, we turn to the plaintiff’s claim that the Appellate Court improperly concluded that the Probate Court could consider the ‘‘best interests’’ of the respondent in selecting a conservator, either as an independent consideration or an overarching guiding principle. The plaintiff contends that, because the ‘‘best interests’’ standard was excised from the relevant statute and replaced with five mandatory factors to be considered, it would be inconsistent with the statutory text and the purpose of
A
The question of whether the ‘‘best interests’’ standard is a proper consideratiоn or guide to selecting a conservator is a matter of law, subject to plenary review and our well established principles of statutory construction. See
As previously noted,
In light of this background, we can readily dispense with the Appellate Court’s determination that the respondent’s best interests may be considered as a factor in conjunction with the statutory factors. Under the doctrine of expressio unius est exclusio alterius—the expression of one thing is the exclusion of another—we presume that when the legislature expresses items as part of a group or series, an item that was not included was deliberately excluded. State v. Bell, 303 Conn. 246, 265, 33 A.3d 167 (2011). Indeed, because the legislature affirmatively deleted every reference to best interests in
We similarly are not persuaded that the respondent’s ‘‘best interests’’ remain an overarching guide through which the statutory factors should be analyzed. That contention is at odds with the text and purposes of
Although we acknowledge that faithful application of the enumerated factors should yield a result that is in a respondent’s best interests, as that term is commonly understood, the legislature evidently recognized that the ‘‘best interests’’
B
Having concluded that the ‘‘best interests’’ of the respondent are no longer a proper consideration in making such an appointment, we must determine whether the Probate Court improperly engaged in such a consideration, and, if so, whether the plaintiff’s substantial rights were prejudiced by any such impropriety. Although it appears that the Probate Court considered Douglas’ best interests, we conclude that this impropriety was not harmful because the record reflects that the Probate Court ultimately, but imperfectly, predicated its decision on the stаtutory factors.
We note at the outset that the Probate Court’s decision is not a model of clarity. The Probate Court unambiguously stated twice in its decision that it had considered the factors set forth in
When examining an ambiguous decision, however, ‘‘we presume that the
The record lends strong support to the statements in the decision that the Probate Court considered, and in fact relied on, the statutory factors. It is clear that the parties litigated the case under the expectation that the statutory factors would govern the court’s decision. The defendant’s attorney asked various witnesses questions relating to those factors. The attorney asked Yamini, for example, whether, in her opinion, the defendant had ‘‘any personal conflicts’’ with any of Douglas’ physicians, whether he had ‘‘the ability to carry out the duties and responsibilities’’ of a conservator, and whether he had knowledge of Douglas’ preferences. Although O’Hara used the term ‘‘best interest’’ on a few occasions during her testimony, including when expressing her belief that both parents had Douglas’ ‘‘best interest’’ at heart, nоne of the questions posed to her sought to elicit an opinion in terms of Douglas’ best interests. Indeed, the plaintiff did not object to the relevancy of those questions posed or the responses given thereto. The plaintiff and the defendant also focused on the statutory factors in their closing arguments. The defendant’s attorney, for example, stated ‘‘[l]et’s discuss the statutory factors Your Honor needs to consider,’’ and then went through the factors one by one. The plaintiff’s attorney responded, arguing why the factors weighed in favor of appointing the plaintiff. Given this posture, we are not persuaded that the Probate Court either ignored this evidence and argument while stating in its decision that these factors were considered, or decided, without notice to the parties, that a factor other than the statutory factors would be given conclusive weight.
We acknowledge, however, that on the last day of the evidentiary hearings, the Probate Court stated that it had ‘‘to determine . . . what [was] in the best interest оf’’ Douglas. In light of the Probate Court’s decision and the litigation posture of the parties, however, it appears most likely that the Probate Court unwisely used the phrase ‘‘best interest’’ as shorthand for the collective effect of the statutory factors. Indeed, in its decision, the court stated that Douglas’ current treatment providers had testified that it would be in Douglas’ best interest to have the defendant appointed as conservator. Only O’Hara, however, had made a statement to that effect; the other providers directed their testimony to the statutory factors. Therefore, we conclude that, even assuming Douglas’ ‘‘best interests’’ were considered, the plaintiff has failed to demonstrate that her substantial rights were prejudiced.
We underscore, however, that, had the record not been so clear that this case was litigated under the statutory factors, we would have been compelled to request an articulation or reverse the judgment. See, e.g., Falvey v. Zurolo, supra, 130 Conn. App. 255 (concluding that appointment of defendant as conservator was arbitrary and constituted abuse of discretion when Probate Court indicated that it had considered
We now turn to the plaintiff’s claim that her substantial rights were prejudiced by the Probate Court’s consideration of Margenot’s report. Although Margenot’s report was never offered or admitted as evidence, the plaintiff claims that the Probate Court improperly relied on it as though it had been, when the report could not have been properly received into evidence because: (1) it contained a conclusion on the ultimate issue insofar as it recommended that the defendant be appointed; and (2) it was replete with hearsay. With respect to the first reason, the plaintiff argues that no one can be an expert qualified to testify on the ultimate issue of who should be appointed as a conservator because the
One of the fundamental reasons that, prior to 2007, appeals from conservatorship proceedings were subject to trials de novo in the trial court was because Probate Court proceedings were relatively informal. See Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978) (noting, inter alia, that strict rules of evidence were rarely followed). The trial court in the present case, however, was bound to follow the rules of evidence. Seе
A guardian ad litem’s report is, by its nature, hearsay if offered for its truth, and it typically contains hearsay within hearsay insofar as it contains the out-of-court statements of others. See
During the proceedings in the present case, however, a Probate Court rule was in effect requiring a guardian ad litem to submit a written report to the court.
Some courts have also drawn a distinction between reliance on such reports for substantive purposes and review for nonsubstantive purposes. See, e.g., Toms v. Toms, supra, 98 S.W.3d 144 (‘‘[a]lthough a guardian ad litem’s report is not admissible
In the present case, it is not clear to this court that the Probate Court relied on the report for substantive purposes rather than simply acknowledged that it had reviewed the report because it was required under then existing court rules to accept it. We first observe that every paragraph in the Probate Court’s decision, except the one relating to the report, commenced with the phrase ‘‘This court finds’’ or ‘‘This court further finds . . . .’’ In contrast, the decision states: ‘‘Margenot, guardian ad litem, has filed his report . . . .’’ This appears to be a purposeful distinction. We further observe that the court never resolved on the record the plaintiff’s specific evidentiary objections to the report or otherwise suggested why it had concluded that it could rely on the report in light of the statutory requirement of compliance with the rules of evidence that had been brought to the court’s attention. With respect to any hearsay on which Margenot relied in reaching his recommendations, we agree with the trial court and the Appellate Court that there is no indication in the record that the Probate Court relied on any such hearsay for substantive purposes. With respect to Margenot’s opinion as to the ultimate issue of fact, even if we assume that this opinion was substantively considered, we are not persuaded that any such impropriety prejudiced the plaintiff’s substantial rights.
‘‘When a court commits an evidentiary impropriety, we will reverse the trial court’s judgment only if we conclude that the trial court’s improper ruling harmed [a party]. . . . In a civil case, a party proves harm by showing that the improper evidentiary ruling likely affected the outcome of the proceeding.’’ (Citation omitted.) Weaver v. McKnight, 313 Conn. 393, 417, 97 A.3d 920 (2014). ‘‘It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error.’’ Swenson v. Sawoska, 215 Conn. 148, 155, 575 A.2d 206 (1990). ‘‘In determining whether evidence is merely cumulative, we consider the nature of the evidence and whether any other evidence was admitted that was probative of the same issue as the evidence in controversy.’’ Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 23, 60 A.3d 222 (2013).
The critical dispute before the Probate Court was which parent was committed to a course of treatment that would promote Douglas’ welfare and independence. The defendant marshaled testimony from all of Douglas’ current treatment providers in support of his application. Most significantly, O’Hara, who had treated Douglas for many years, had undertaken extensive testing and examinations of him, and who specialized in the very conditions at issue, opined that the defendant was pursuing the proper and effective course of treatment. The plaintiff’s own experts offered some support for the course of treatment undertaken by the defendant and only supported
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.