DeNunzio v. DeNunzio ( 2016 )

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SHARON DENUNZIO v. PETER DENUNZIO ET AL.
(SC 19388)
Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued September 11, 2015—officially released January 12, 2016
Michael P. Kaelin, with whom was William N.
Wright, for the appellant (plaintiff).
Samuel V. Schoonmaker IV, with whom, on the brief,
was Wendy Dunne DiChristina, for the appellee
(named defendant).
Louise T. Truax, with whom, on the brief, was Leslie
I. Jennings-Lax, for the appellee (defendant Douglas
DeNunzio).
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 conser-
vatorship scheme set forth in No. 07-116 of the 2007
Public Acts (P.A. 07-116) affected the Probate Court’s
selection of a conservator in this case.
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 that the Appellate Court improperly concluded
that her substantial rights were not prejudiced because:
(1) the Probate Court properly could use Douglas’ ‘‘best
interests’’ as a consideration in the appointment of a
conservator, in addition to the statutory factors adopted
in P.A. 07-116; see General Statutes § 45a-650 (h);2 or
as a guiding principle in applying those factors; and (2)
a guardian ad litem’s report supporting the defendant’s
appointment was properly considered by the Probate
Court for its opinion as to the ultimate issue of fact and
was not considered insofar as it contained inadmissible
hearsay. We agree with the plaintiff that, after the enact-
ment of P.A. 07-116, probate courts may no longer con-
sider the amorphous ‘‘best interests’’ of a respondent
in conservatorship proceedings. We further agree that
probate courts may only consider evidence that has
been properly admitted pursuant to the rules of evi-
dence. We nevertheless conclude that, to the extent that
the Probate Court may have engaged in such improper
considerations, the plaintiff’s substantial rights were
not prejudiced in light of the clear weight of the admissi-
ble evidence supporting the defendant’s appointment
under the proper standard. We therefore affirm the judg-
ment of the Appellate Court.
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 persev-
erate, 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 deci-
sion-making authority over medical decisions concern-
ing 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 ‘‘preoc-
cupation with Douglas’ health’’ was unhealthy for
Douglas.
Douglas’ numerous treating physicians have deter-
mined that his symptoms were caused by schizophrenia
and an Asperger spectrum disorder. The defendant
accepted these physicians’ opinions and agreed with
their advice to place Douglas on a regimen of antipsy-
chotic 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 devel-
opmental, 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 have resulted from
chronic Lyme disease that had persisted despite
repeated courses of antibiotic treatment, negative test
results, and Douglas’ ability to engage in vigorous ath-
letic activities such as skiing. She therefore advocated
substantially reducing Douglas’ antipsychotic medica-
tion and treating him with antibiotics.
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 Pro-
bate 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 stip-
ulated that Douglas’ condition was such that he needed
a conservator, the evidentiary hearing on the applica-
tions 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 testified 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 a 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 special-
izes 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 plain-
tiff 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 Yamini,
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 exam-
ined Douglas eighteen months and three years prior to
the hearing, respectively. In addition to their observa-
tions 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 been caused by chronic Lyme
disease, and suggested the possibility that Douglas may
be on too high a dosage of antipsychotic medication,
but conceded that Douglas should continue the medica-
tion as prescribed if the defendant accurately had repre-
sented Douglas’ condition. Robert Bransfield opined
that Lyme disease may be a contributory factor to Doug-
las’ symptoms and therefore recommended that a Lyme
disease specialist be added to Douglas’ treatment team
and that the team consider adding antibiotics to Doug-
las’ current medications.
On the last day of the evidentiary hearings, Margenot
filed a guardian ad litem report over the plaintiff’s objec-
tion. The report indicated that Margenot had inter-
viewed 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 defen-
dant] 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 with-
held 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 symp-
toms, 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; that they cannot agree on the proper treat-
ment 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 medi-
cal 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 elab-
oration, that the court had considered the factors set
forth in § 45a-650 (h) in deciding whom to appoint as
conservator.
The plaintiff appealed from the Probate Court’s deci-
sion to the trial court pursuant to General Statutes
§ 45a-186. The plaintiff claimed, inter alia, that the Pro-
bate Court had failed to apply the statutory factors for
selecting a conservator set forth in § 45a-650 (h) and
had improperly considered Margenot’s report. The trial
court rejected these claims and affirmed the Probate
Court’s decision. The trial court ultimately concluded
that there was competent and compelling evidence that
the appointment of the defendant rather than the plain-
tiff was in Douglas’ best interests and that the plaintiff
had not proved that her substantial rights were prej-
udiced.
The plaintiff appealed to the Appellate Court, reiterat-
ing her claim that consideration of Margenot’s report
was improper. In connection with that claim, the plain-
tiff also asserted that the Probate Court’s decision
improperly had been based on a standard that no longer
existed following the enactment of P.A. 07-116. Specifi-
cally, she contended that instead of applying the factors
prescribed in § 45a-650 (h), the court improperly had
applied the pre-2007 best interests of the conserved
person standard.
The Appellate Court affirmed the trial court’s judg-
ment, concluding that the Probate Court’s decision had
been rendered in conformity with the conservatorship
scheme as modified by P.A. 07-116. DeNunzio v.
DeNunzio, 151 Conn. App. 403, 95 A.3d 557 (2014).
With respect to Margenot’s report, the Appellate Court
determined that, although the rules of evidence applied
and Margenot’s report had not been admitted into evi-
dence, the Probate Court had considered the report.
Id., 412. Nonetheless, it concluded that Margenot could
give his opinion on the ultimate issue of fact—who
should be appointed as conservator—because having
been appointed specifically to investigate the circum-
stances of the parties, the specialized knowledge he
had gained pursuant to his investigation qualified him
to make recommendations to the court as to what
appointment would be in Douglas’ best interests.3 Id.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 § 45a-650 (h) in determining whom to appoint
as conservator, and the best interests of the conservatee
are not a consideration, we disagree. The statutory fac-
tors cannot be considered in a vacuum. Consistent with
the overall policy and purpose of a conservatorship,
the best interests of a conservatee must always be a
consideration and a guide in examining the statutory
factors. In other words, because a conservator is
appointed to serve the best interests of the conservatee,
the statutory factors enumerated in § 45a-650 (h) must
be considered with the overarching purpose of serving
those interests.’’ Id., 409 n.3.
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 § 16 of P.A. 07-116 and codified
as § 45a-650 (h) wholly supplant any ‘‘best interests’’
consideration, but, to the extent that the Probate Court
considered that matter, the record demonstrates that
the statutory factors were considered and supported
the Probate Court’s selection of the defendant as con-
servator. We further conclude that, although there
appears to be clear tension between a guardian ad
litem’s report being considered for substantive pur-
poses without being admitted into evidence and the
strict procedural changes mandated under P.A. 07-116,
we are not persuaded that any improper reliance on
Margenot’s report would have affected the outcome.
Accordingly, the plaintiff’s substantial rights were not
prejudiced.
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 P.A. 07-116. Prior to 2007, this court generally
adhered to the principle that ‘‘the legal disability of an
incompetent is analogous to that of a minor.’’ Cottrell
v. Connecticut Bank & Trust Co., 175 Conn. 257, 264,
398 A.2d 307 (1978); accord Lesnewski v. Redvers, 276
Conn. 526, 537, 886 A.2d 1207 (2005), overruled by Gross
v. Rell, 304 Conn. 234, 270–71, 40 A.3d 240 (2012).5 This
court thus reasoned that ‘‘there is no difference in the
court’s duty to safeguard the interests of a minor and
the interests of a conserved person. . . . This is
reflected in the statutory scheme governing conserva-
torships, which requires the Probate Court to be guided
by the conserved person’s best interests in establishing
the conservatorship and selecting the conservator; Gen-
eral Statutes [Rev. to 2005] § 45a-650 (e); limiting the
conservator’s powers and duties; General Statutes [Rev.
to 2005] § 45a-650 (h); resolving conflicts between con-
servators; General Statutes [Rev. to 2005] § 45a-657;
approving a conservator’s petition to sell or mortgage
the conserved person’s real property; General Statutes
[Rev. to 2005] § 45a-164 (a); and determining whether
to remove a conservator. General Statutes [Rev. to 2005]
§§ 45a-242 (a) and 45a-199 . . . .’’6 (Citations omitted.)
Lesnewski v. Redvers, supra, 540–41.
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 sub-
stantive 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 P.A. 07-116);
Falvey v. Zurolo, 130 Conn. App. 243, 250–53, 22 A.3d
682 (2011) (same). These changes included enumerat-
ing factors that must be considered in determining
whether a conservator is necessary and, if one is neces-
sary, who should be appointed as conservator. P.A. 07-
116, § 16 (codified as § 45a-650 [g] and [h]).
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 con-
ducted on the record; General Statutes § 45a-650 (b);
eliminating the usual practice prior to 2007, under
which appeals from decisions rendered by the Probate
Court were trials de novo. General Statutes (Rev. to
2007) § 45a-186 (a); see P.A. 07-116, § 2 (amending § 45a-
186 [a]); Lesnewski v. Redvers, supra, 276 Conn. 543.
Because of the formalities required in such proceedings,
they are subject to a new standard of review, under
which ‘‘[t]he Superior Court shall affirm the decision
of the Court of Probate unless the Superior Court finds
that substantial rights of the person appealing have
been prejudiced because the findings, inferences, con-
clusions or decisions are: (1) In violation of the federal
or state constitution or the general statutes, (2) in
excess of the statutory authority of the Court of Pro-
bate, (3) made on unlawful procedure, (4) affected by
other error of law, (5) clearly erroneous in view of
the reliable, probative and substantial evidence on the
whole record, or (6) arbitrary or capricious or charac-
terized by abuse of discretion or clearly unwarranted
exercise of discretion.’’ General Statutes § 45a-186b; see
also Falvey v. Zurolo, supra, 130 Conn. App. 256–57
(explaining that this standard also applies to appel-
late courts).
I
With that background in mind, we turn to the plain-
tiff’s claim that the Appellate Court improperly con-
cluded that the Probate Court could consider the ‘‘best
interests’’ of the respondent in selecting a conservator,
either as an independent consideration or an overarch-
ing 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 P.A. 07-116 in
limiting the probate courts’ discretion to allow the Pro-
bate Court to use the respondent’s ‘‘best interests’’ in
selecting a conservator. The plaintiff further contends
that the decision evidences that the Probate Court made
its decision on the basis of which appointment would
be in Douglas’ best interests by reciting opinion testi-
mony to that effect and by failing to make any findings
relating to the statutory factors. In response, the defen-
dant contends that the decision indicates that the Pro-
bate Court’s decision was predicated on the statutory
factors, but even if the court did consider Douglas’ best
interests, P.A. 07-116 did not intend to preclude such
a consideration.7 The defendant notes that other sec-
tions of the conservatorship statutes expressly retain
the ‘‘best interests’’ standard. See, e.g., General Statutes
§§ 45a-132 (d) and 45a-657. We conclude that the
respondent’s ‘‘best interests’’ are neither a factor nor
an overarching guide in selecting a conservator. We
further conclude, however, that to the extent that the
Probate Court considered Douglas’ best interests, that
consideration was not harmful given the Probate
Court’s consideration of the statutory factors and the
clear weight of the admissible evidence supporting its
decision under those factors.8
A
The question of whether the ‘‘best interests’’ standard
is a proper consideration or guide to selecting a conser-
vator is a matter of law, subject to plenary review and
our well established principles of statutory construc-
tion. See General Statutes § 1-2z (setting forth plain
meaning rule); Teresa T. v. Ragaglia, 272 Conn. 734,
742, 865 A.2d 428 (2005) (‘‘[w]hen a statute is not plain
and unambiguous, we also seek interpretive guidance
from the legislative history of the statute and the cir-
cumstances surrounding its enactment, the legislative
policy it was designed to implement, the statute’s rela-
tionship to existing legislation and common-law princi-
ples governing the same general subject matter’’).
As previously noted, § 16 of P.A. 07-116 amended
§ 45a-650, which prescribes the procedures a Probate
Court must follow in determining whether to appoint
a conservator on an application for involuntary repre-
sentation and, if so, who should be appointed to serve
that role. Prior to the passage of P.A. 07-116, the statute
provided that ‘‘the court shall be guided by the best
interests of the respondent’’ in making both determina-
tions. General Statutes (Rev. to 2007) § 45a-650 (e).
Indeed, even when the respondent had requested that
a particular person serve as conservator, the Probate
Court could disregard that choice if it found that the
respondent lacked ‘‘sufficient capacity to form an intel-
ligent preference’’ or if that appointment was ‘‘not in
the best interests of the respondent.’’ General Statutes
(Rev. to 2007) § 45a-650 (e). Public Act 07-116, § 16,
deleted the intelligent preference requirement and
every reference to ‘‘best interests’’ in § 45a-650. Instead,
it directed the Probate Court to comply with the respon-
dent’s choice unless the nominee was unwilling, unable,
or disqualified by substantial evidence. P.A. 07-116, § 16.
In the absence of an expressed choice, P.A. 07-116 pre-
scribed as follows: ‘‘In considering who to appoint . . .
the court shall consider (1) the extent to which a pro-
posed conservator has knowledge of the respondent’s
or conserved person’s preferences regarding the care
of his or her person or the management of his or her
affairs, (2) the ability of the proposed conservator to
carry out the duties, responsibilities and powers of a
conservator, (3) the cost of the proposed conservator-
ship to the estate of the respondent or conserved per-
son, (4) the proposed conservator’s commitment to
promoting the respondent’s or conserved person’s wel-
fare and independence, and (5) any existing or potential
conflicts of interest of the proposed conservator.’’ P.A.
07-116, § 16, codified as § 45a-650 (h).
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 fac-
tor 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 § 45a-650, we presume that the legislature
intended to remove that matter from consideration.
This presumption is reinforced by the fact that the legis-
lature undoubtedly knows how to enumerate a nonex-
clusive list of factors when it wants to. See, e.g., General
Statutes § 19a-528 (‘‘the commissioner may consider all
factors that the commissioner deems relevant, includ-
ing, but not limited to, the following’’); General Statutes
§ 51-219b (a) (‘‘the following factors, as well as any
other factors which may be relevant, shall be consid-
ered’’). Using best interests as a factor could thwart
the legislature’s clear intent because nothing would pre-
clude the Probate Court from giving that factor disposi-
tive weight after considering the statutory factors.
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 P.A.
07-116. The legislature readily could have retained the
language directing that the Probate Court ‘‘shall be
guided by the best interests of the respondent’’; General
Statutes (Rev. to 2007) § 45a-650 (e); in selecting a con-
servator and simply elaborated that the statutory fac-
tors were relevant to that assessment. Instead, the
legislature unambiguously chose to excise the phrase
‘‘shall be guided by the best interests of the respondent’’
from § 45a-650. Indeed, the fact that the legislature
retained the ‘‘best interests’’ standard in a few other
sections of the conservatorship scheme demonstrates
that it retained that standard where it intended for that
standard to apply. It is noteworthy that the provisions
in which the ‘‘best interests’’ standard was retained all
involve issues that arise after a conservator has been
appointed and been provided with those limited powers
that cannot be retained by the conservatee. See, e.g.,
General Statutes § 45a-164 (a) (sale or mortgage of real
property); General Statutes § 45a-655 (e) (distribution
of gifts from estate); General Statutes § 45a-657 (con-
flicts between conservators); General Statutes § 45a-
679 (conflicts between guardians and conservators).
The text of P.A. 07-116 therefore indicates that the legis-
lature retained the ‘‘best interests’’ standard in the spe-
cific circumstances in which it was appropriate and
abandoned it in those for which it was not.
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’’ standard has historically been
imbued with a particular meaning in Probate Court
proceedings—one that effectively equates adults who
are respondents in conservation proceedings with
minors. Public Act 07-116 unambiguously manifests that
such a paternalistic view no longer is consistent with
a contemporary understanding of the broad range of
capacities of persons who are in need of a conservator
and the necessity of preserving the rights of such per-
sons to the greatest extent possible. See, e.g., P.A. 07-
116, § 1 (allowing respondent or conserved person to
refuse court-ordered examination by physician, psychi-
atrist or psychologist); P.A. 07-116, § 16 (requiring con-
servators, in carrying out their duties, to employ least
restrictive means necessary to meet needs of conserved
person and reserving to conserved person all rights
and authority not expressly assigned to conservator).
Indeed, because there is no statute or rule that expressly
directs the Probate Court to make findings on the record
in support of the enumerated factors; cf. Practice Book
§ 6-1 (requiring trial court to state basis for conclusion
as to each claim of law and factual basis therefor in
rulings that constitute final judgment for purposes of
appeal); sanctioning the Probate Court’s use of the
respondent’s best interests as a ‘‘guide’’ in considering
those factors runs the risk of the Probate Court effec-
tively continuing to follow past practice. Doing so obvi-
ously would be at odds with the goal of P.A. 07-116 to
ensure greater accountability in the conservatorship
process. We therefore conclude that the ‘‘best interests’’
of the respondent are neither a factor nor a guide in
the selection of a conservator.
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 sub-
stantial rights were prejudiced by any such impropriety.
Although it appears that the Probate Court considered
Douglas’ best interests, we conclude that this impropri-
ety was not harmful because the record reflects that the
Probate Court ultimately, but imperfectly, predicated its
decision on the statutory factors.
We note at the outset that the Probate Court’s deci-
sion is not a model of clarity. The Probate Court unam-
biguously stated twice in its decision that it had
considered the factors set forth in § 45a-650 (h) in
selecting the defendant.9 The decision does not, how-
ever, reference any of the specific statutory factors or
state factual findings that are directly connected to any
one of those factors. In what appears to be a brief
summary of the evidence preceding the decision to
appoint the defendant, much of the evidence recited is
more directly related to why the plaintiff is not qualified
or the better qualified person to be the conservator
rather than why the defendant is qualified or the better
qualified person. In the court’s statements immediately
preceding its statement appointing the defendant, the
court noted ‘‘that medical professionals involved with
[Douglas’] current care and supervision have testified
that it is the best interest[s] of [Douglas] to have the
[defendant] appointed as [c]onservator.’’
When examining an ambiguous decision, however,
‘‘we presume that the trial court applied the correct
standard . . . .’’ Singhaviroj v. Board of Education,
301 Conn. 1, 17 n.12, 17 A.3d 1013 (2011). We also ‘‘read
the record to support, rather than to undermine, the
judgment.’’ (Internal quotation marks omitted.)
Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 9, 826
A.2d 1088 (2003).
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 ques-
tions relating to those factors. The attorney asked
Yamini, for example, whether, in her opinion, the defen-
dant 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, none 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 argu-
ments. 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 Pro-
bate 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 inter-
est of’’ 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 treat-
ment providers had testified that it would be in Douglas’
best interest to have the defendant appointed as conser-
vator. 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 consid-
ered, 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 (con-
cluding that appointment of defendant as conservator
was arbitrary and constituted abuse of discretion when
Probate Court indicated that it had considered § 45a-
650 [h] factors in appointing defendant but ‘‘the record
[was] bereft of any evidence regarding the defendant
or his qualifications to be conservator’’). Moreover,
although we recognize that there is no rule of practice
or statute expressly requiring the Probate Court to make
specific findings relating to the court’s consideration
of each of the statutory factors, it clearly would be the
better practice to do so.
II
We now turn to the plaintiff’s claim that her substan-
tial rights were prejudiced by the Probate Court’s con-
sideration 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 § 45a-
650 (h) factors ‘‘present questions of fact [that] do not
require any special scientific or technical knowledge
to decide.’’10 Thus, according to the plaintiff, a recom-
mendation on who should be appointed as conservator
is not necessary to assist the court, and is therefore
inadmissible under the rules of evidence. In the alterna-
tive, the plaintiff argues that, even if an expert’s recom-
mendation could help the court, a guardian ad litem
may be an expert on the law, if also an attorney, but
is not an expert on disabled adults. With respect to
her second reason, the plaintiff claims that the hearsay
throughout the report was harmful, pointing specifically
to a statement attributed to O’Hara that the plaintiff’s
appointment as conservator would ‘‘ ‘kill’ ’’ Douglas.
The defendant responds that there is no evidence that
the Probate Court relied on the report, and, even if the
court did rely on it, the report was cumulative of other
admissible evidence and therefore harmless. We con-
clude that consideration of the report would have been
improper under the circumstances. Nonetheless, we are
not persuaded that the report, to the extent that it may
have been considered, had a substantial impact on the
Probate Court’s decision.
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 evi-
dence. See Conn. Code Evid. § 1-1 (b). Following the
enactment of P.A. 07-116, in conservatorship proceed-
ings under § 45a-650, the Probate Court is required to
adhere to the more formalized procedures to which the
trial court previously was bound. See General Statutes
§ 45a-650 (b). Thus, statements in a report by a guardian
ad litem cannot be relied on as substantive evidence
unless the report has been properly admitted into
evidence.
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 Conn. Code Evid. § 8-1 (defin-
ing hearsay). Use of such statements for substantive
purposes (i.e., their truth) is barred unless they satisfy
an exception provided by a statute or rule. See Conn.
Code Evid. §§ 8-2 and 8-7. Such statements may be used,
however, for nonsubstantive purposes under certain
conditions. See, e.g., Conn. Code Evid. § 7-4 (b) (‘‘The
facts in the particular case upon which an expert bases
an opinion . . . need not be admissible in evidence if
of a type customarily relied on by experts in the particu-
lar field in forming opinions on the subject. The facts
relied on pursuant to this subsection are not substantive
evidence, unless otherwise admissible as such evi-
dence.’’). An opinion on an ultimate issue of fact may
likewise be inadmissible unless certain predicates are
satisfied. See Conn. Code Evid. §§ 7-2, 7-3 and 7-4. In
addition to these evidentiary constraints, relying on
such a report for substantive purposes without requir-
ing its author to be subject to cross-examination may
raise due process concerns. See Toms v. Toms, 98
S.W.3d 140, 144–45 (Tenn. 2003).
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. Probate
Court Rules (2012) § 4.3. Although that rule since has
been repealed; see Probate Court Rules § 13.6 (effective
July 1, 2013); a recent amendment to the conservator-
ship scheme appears to sanction or at least acknowl-
edge the practice of guardians ad litem submitting
reports to the court. See Public Acts 2012, No. 12-25,
§ 1, codified as General Statutes § 45a-132 (a) (3) (‘‘[a]ny
appointment of a guardian ad litem under this subdivi-
sion shall terminate upon the guardian ad litem’s report
to the judge or magistrate . . . or earlier upon the
order of the judge or magistrate’’).11 Nonetheless, the
legislature has not set forth an exception to the eviden-
tiary requirements for guardian ad litem reports. Cf.
General Statutes § 54-46a (b) (in probable cause hear-
ings, ‘‘[t]he court shall be confined to the rules of evi-
dence, except that written reports of expert witnesses
shall be admissible in evidence and matters involving
chain of custody shall be exempt from such rules’’). It
may be, however, that these reporting practices can be
reconciled with the mandate that the rules of evidence
apply to conservatorship proceedings.
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 evidence, we hold that
such a report may be reviewed by a trial court’’); Joyce
S. v. Frank S., 6 Neb. App. 23, 33, 571 N.W.2d 801 (1997)
(distinguishing between reviewing report to determine
whether guardian ad litem has performed adequate
investigation and relying on it for truth of statements
therein). Indeed, the Tennessee Supreme Court noted
that holding otherwise and precluding the submission
of reports ‘‘would effectively undermine the important
role played by a guardian ad litem’’ and that a guardian
ad litem’s report ‘‘may assist the parties by: [1] alerting
the parties to the identity of potential witnesses who
may be interviewed; [2] highlighting the testimony, both
favorable and unfavorable, that may be presented at
trial; and [3] providing a third party’s view of the facts
of the case.’’ Toms v. Toms, supra, 144.
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 require-
ment 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 hear-
say 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 impro-
priety 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 omit-
ted.) 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 evi-
dence 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 evi-
dence 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 indepen-
dence. 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 test-
ing 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 treat-
ment. The plaintiff’s own experts offered some support
for the course of treatment undertaken by the defendant
and only supported the possibility that Douglas could
still have Lyme disease and that such a condition could
be a contributing factor in his condition. Therefore, we
cannot conclude that Margenot’s opinion, which was
consistent with the view of Douglas’ longtime treating
physician and the clear weight of the remaining evi-
dence, likely affected the outcome.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
In her complaint appealing from the Probate Court’s decision, the plaintiff
named Peter DeNunzio and Douglas DeNunzio as defendants. For conve-
nience, we refer to Peter DeNunzio as the defendant and to Douglas DeNun-
zio by his first name.
2
Although § 45a-650 has been amended by the legislature since the events
underlying the present case; see, e.g., Public Acts 2014, No. 14-103, § 6; those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
3
The Appellate Court’s opinion principally focused on a statement made
in the Probate Court by Margenot at oral argument on the admissibility of
his report regarding his opinion as to who should serve as conservator;
DeNunzio v. DeNunzio, supra, 151 Conn. App. 410–11; but the Appellate
Court noted that the same reasoning applies to his opinion in the report.
Id., 412 n.6.
4
The first question, as certified, stated: ‘‘Did the Appellate Court properly
conclude that the trial court correctly used the ‘best interest of the conser-
vatee’ standard as the basis for its decision?’’ DeNunzio v. DeNunzio, 314
Conn. 926, 101 A.3d 271 (2014). In accordance with established practice,
we have reframed the question to more accurately reflect the issue presented
to the Appellate Court. See State v. Ouellette, 295 Conn. 173, 184, 989 A.2d
1048 (2010).
5
In Gross v. Rell, supra, 304 Conn. 269, this court recognized that, even
under the pre-2007 scheme, the legal status of incapable adults was not
equivalent to minors for all purposes. In that case, this court concluded that
‘‘the governing standard for the representation of impaired adult clients is
not the protection of their best interests, but, to the extent possible, the
zealous advocacy of their expressed preferences. This is true even if the
Probate Court has appointed a conservator for the client.’’ Id.; see id., 264,
270–71 (citing 2005 revision to General Statutes as applicable to case before
court and overruling Lesnewski v. Redvers, supra, 276 Conn. 526, insofar
as it held that conserved person may appeal in his or her own name from
Probate Court decision only if conserved person’s attorney demonstrates
to trial court that appeal is in conserved person’s best interests).
6
Recently, in Kortner v. Martise, 312 Conn. 1, 52–53, 91 A.3d 412 (2014),
this court quoted this best interests framework from Lesnewski v. Redvers,
supra, 276 Conn. 540–41, under circumstances that did not require us to
consider whether the ‘‘best interests’’ standard continued to apply to the
selection of the conservator following the enactment of P.A. 07-116. Because
Kortner was decided well after the Probate Court’s decision in the present
case, it could not have influenced that court’s view of the proper legal
standard. Nonetheless, it may have influenced the Appellate Court’s view
of the law, which we now clarify.
7
Truax filed a brief in this court on behalf of Douglas arguing against
the position advanced by the plaintiff in this certified appeal. The plaintiff
contends that we should not consider Truax’ brief because the fact that
Douglas did not want to take a position before the Probate Court on which
one of his parents should serve as his conservator makes it unethical for
Truax to advocate for one parent over the other on appeal. Because Truax’
brief does not raise any arguments that substantively differ from the defen-
dant’s, however, we need not consider the plaintiff’s contention.
8
We do not rely on Margenot’s report in reaching that conclusion. See
part II of this opinion.
9
The fact that one statement in the decision refers to the ‘‘conservator(s)
named above,’’ rather than the ‘‘conservator’’ raises a question as to whether
this statement was preprinted on the Probate Court form. Nonetheless, the
plaintiff has neither advanced such a contention, nor provided this court
with a copy of the Probate Court form then in effect.
10
It is unclear from the plaintiff’s argument whether she recognizes that
an expert may not only have scientific or technical knowledge, but also
may have ‘‘other specialized knowledge’’ for which he or she is qualified as
an expert by skill, experience, training, or education. See Conn. Code Evid.
§ 7-2.
11
We recognize that there is an inherent tension between the guardian
ad litem’s traditional role as an advocate for the respondent’s ‘‘best interests’’
and his or her role in proceedings determining whether a conservator is
necessary and who should be appointed in light of the fact that the ‘‘best
interests’’ standard no longer is applicable to such proceedings. The 2012
amendment to the conservatorship statutes, however, limited the circum-
stances under which a guardian ad litem may be appointed in conservator-
ship proceedings and required the order making such an appointment to
specifically delineate the scope of the guardian ad litem’s mandate. See
General Statutes § 45a-132 (a) (3) (‘‘No judge or magistrate may appoint a
guardian ad litem for a conserved person in a proceeding under section
17a-543 or 17a-543a or sections 45a-644 to 45a-663, inclusive, unless [A] the
judge or magistrate makes a specific finding of a need to appoint a guardian
ad litem for a specific purpose or to answer specific questions to assist the
judge or magistrate in making a determination, or [B] the conserved person’s
attorney is unable to ascertain the preferences of the person, including
preferences previously expressed by the person. Prior to appointing a guard-
ian ad litem for a person under subparagraph [B] of this subdivision, the
judge or magistrate may question the person to determine the person’s
preferences or inability to express such preferences. If the judge or magis-
trate appoints a guardian ad litem under this subdivision, the judge’s or
magistrate’s order shall [i] limit the appointment in scope and duration, and
[ii] direct the guardian ad litem to take only the specific action required or
to answer specific questions posed by the judge or magistrate . . . .’’). Thus,
the guardian ad litem’s role may be limited, particularly when the issue to
be decided is one in which the ‘‘best interests’’ standard no longer applies.