Benjamin v. Dept. of Developmental Services ( 2021 )

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BENJAMIN F. ET AL. v. DEPARTMENT OF
DEVELOPMENTAL SERVICES ET AL.*
(AC 44025)
Bright, C. J., and Alvord and Pellegrino, Js.
Syllabus
The plaintiffs, B and his mother and guardian D, appealed to this court from
the judgment of the trial court dismissing their administrative appeal
from the decision of the defendant Commissioner of Developmental
Services, concluding that B was not eligible for services from the defen-
dant Department of Developmental Services. D filed an application with
the department on B’s behalf, seeking services related to B’s intellectual
disability and autism spectrum disorder. The department informed D
that B was not eligible for services, and she requested a formal eligibility
hearing. Following the hearing, the department’s hearing officer issued
a proposed decision concluding that B was eligible for services. After
reviewing the record, however, the commissioner issued a final decision
determining that, as a result of B’s test scores, when viewed in their
totality in accordance with our Supreme Court’s decision in Christopher
R. v. Commissioner of Mental Retardation (277 Conn. 594), B did not
meet the eligibility criteria for an intellectual disability as defined in the
applicable statute (§ 1-1g). The plaintiffs appealed from the commission-
er’s decision to the Superior Court, which concluded that there was
substantial evidence in the record supporting the commissioner’s final
decision, and the plaintiffs appealed to this court. Held:
1. The plaintiffs could not prevail on their claim that an amendment to § 1-
1g in 2012 (Public Acts 2012, No. 12-136), which, inter alia, replaced the
term ‘‘one or more’’ with the word ‘‘tests’’ with respect to the manner
in which the existence of an intellectual disability was to be determined,
precluded the department from considering more than one intelligence
test in its eligibility determinations when the applicant presents one
full-scale IQ test score below 70: following the statutory amendment,
Christopher R. remained good law and continued to control the meaning
of § 1-1g, as, in that decision, our Supreme Court did not rely solely on
the legislature’s use of the term ‘‘one or more’’ but also relied on common
sense and logic to determine that multiple tests could be considered;
moreover, this court did not read the substitution of the word ‘‘tests’’
for the term ‘‘one or more’’ to evidence an intention to eliminate the
plural nature of the phrase, and the plain meaning of the term ‘‘tests’’
refers to more than one test.
2. The plaintiffs’ claim that, if the commissioner were permitted to consider
multiple IQ test scores, he was required to analyze all full-scale IQ scores
and that he failed to consider B’s 2016 score in violation of § 1-1g was
unpersuasive: although the commissioner deleted the finding pertaining
to B’s 2016 full-scale IQ score from his final decision, he added detailed
findings regarding the report that contained the 2016 score and those
findings were supported by substantial evidence in the record.
3. The Superior Court properly declined to take judicial notice of certain
documents relating to B’s guardianship hearing in the Probate Court,
including an assessment by two members of the department, which
indicated that B was a person with an intellectual disability as defined
in § 1-1g: the plaintiffs failed to file an application for leave to present
additional evidence with the Superior Court to introduce the Probate
Court documents, despite there being a deadline explicitly provided in
the scheduling order for such a filing; moreover, if the Superior Court
had taken judicial notice of the Probate Court documents, it would have
weighed the evidence in violation of the applicable statute (§ 4-183 (j)),
which prohibits the court from substituting its judgment for that of the
department.
4. The Superior Court properly declined to invoke the doctrine of judicial
estoppel: the plaintiffs’ claim that the defendants were estopped from
taking the position that B did not have an intellectual disability as defined
in § 1-1g was premised on representations made by the department to
the Probate Court, the Probate Court documents containing the repre-
sentations were not part of the administrative record, and the Superior
Court properly declined the plaintiffs’ request to take judicial notice of
such documents.
5. The commissioner’s decision denying the plaintiffs’ application was sup-
ported by substantial evidence in the record taken as a whole: the
commissioner’s reliance on B’s test scores from 2010 and 2013 was not
arbitrary or capricious because his decision explicitly stated that the
department had reviewed all of B’s testing, which also included his 2016
and 2018 scores; moreover, the plaintiffs’ argument that the Superior
Court should have remanded the case due to the commissioner’s invalid
and insufficient factual findings was unavailing, as this court could not
conclude that the commissioner’s misstatement relating to the depart-
ment’s 2011 denial of B’s prior application for benefits prejudiced the
plaintiffs, the commissioner’s decision directly referenced the report
containing the results of B’s cognitive assessment in addition to the
allegedly subjective testimony of a department official regarding such
results, the commissioner’s consideration of subtests, in addition to B’s
full-scale IQ scores, was supported by substantial evidence and did
not run afoul of Christopher R., the commissioner’s identification of a
statement in the cognitive assessment as being ‘‘significant’’ was not
improper, and this court could not substitute its own judgment on the
weight of the evidence for that of the commissioner.
Argued May 25—officially released November 2, 2021
Procedural History
Appeal from the decision of the defendant Commis-
sioner of Developmental Services denying the applica-
tion for services submitted on behalf of the named
plaintiff, brought to the Superior Court in the judicial
district of New Britain, where the court, Hon. Henry S.
Cohn, judge trial referee, rendered judgment dismissing
the appeal, from which the plaintiffs appealed to this
court. Affirmed.
Benjamin M. Wattenmaker, with whom, on the brief,
was John M. Wolfson, for the appellants (plaintiffs).
Emily V. Melendez, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare Kindall, solicitor general, for the appel-
lees (defendants).
Opinion
ALVORD, J. The plaintiffs, Benjamin F. and his
mother and guardian Denise F., appeal from the judg-
ment of the Superior Court dismissing their administra-
tive appeal from the decision of the defendant Commis-
sioner (commissioner) of Developmental Services,
concluding that Benjamin is not eligible for services
from the defendant Department of Developmental Ser-
vices (department). On appeal, the plaintiffs claim that
(1) the final decision of the commissioner violates the
plain language of General Statutes § 1-1g, on the basis
that the amended version of the statute no longer per-
mits the commissioner to consider more than one intel-
ligence test where the applicant has presented a full-
scale intelligence quotient (IQ) score below seventy, (2)
alternatively, that if the statute permits consideration
of more than one test, the commissioner is required to
consider all full-scale IQ scores, (3) the Superior Court
erred in refusing to take judicial notice of certain Pro-
bate Court records, (4) the Superior Court erred in
declining to apply the doctrine of judicial estoppel, and
(5) the final decision was not supported by substantial
evidence in the record. We affirm the judgment of
the court.
The record reveals the following facts and procedural
history. On February 1, 2018, Denise filed an application
on behalf of Benjamin, seeking services related to his
intellectual disability and autism spectrum disorder. By
letter dated April 5, 2018, the department communi-
cated to Denise that Benjamin was not eligible for
department services. Denise thereafter requested a for-
mal eligibility hearing, which was held in October, 2018.
On October 29, 2018, the department’s hearing officer
issued a proposed decision (proposed decision) con-
cluding that Benjamin was eligible for services. The
hearing officer made the following findings of fact.
Denise had filed two previous applications for depart-
ment benefits on behalf of Benjamin, which had been
denied in 2011 and 2015. In 2016, a cognitive assessment
was completed by Chris Abildgaard, a psychologist with
Benhaven Learning Network (Abildgaard report).
‘‘[Benjamin’s] full-scale IQ score was 65 on the [Wech-
sler Adult Intelligence Scale—Fourth Edition (WAIS-
IV)], his [Verbal Comprehension Index (VCI)] score was
74 (which falls in the borderline range), his [Perceptual
Reasoning Index (PRI)] score was 73 (which falls in the
borderline range), his [Working Memory Index (WMI)]
score was 74 (which falls in the borderline range), and
his [Processing Speed Index (PSI)] score was 59 (which
fell in the extremely low range and is effected by his
seizure disorder).’’ On July 3, 2018, an evaluation of
cognitive functioning was completed by Andrew R.
Moyer, a school psychologist and behavior analyst
(Moyer report). ‘‘His [Woodcock-Johnson Test of Cogni-
tive Abilities—Fourth Edition] was 66, which is in the
very low range.’’ ‘‘On May 28, 2018, a transition planning
evaluation was completed by Margaret Kardos, PhD of
Kardos Educational Consulting, LLC [(Kardos report)].
. . . On the Adaptive Behavior Assessment System—
3rd Edition (ABAS-3) his skills fall in the extremely low
range. Areas of significant weakness were noted in all
domains across all settings.’’ ‘‘On February 20, 2018,
an Autism Spectrum Assessment Program Evaluation
report was prepared by Kerri Byron, CCC-SLP of Con-
necticut Children’s Medical Center. His diagnoses were
epilepsy, learning disability and autism. . . . On Octo-
ber 4, 2018, a letter was prepared by Mark Schomer,
M.D., Pediatric Epilepsy and Neurology of Connecticut
Children’s Specialty Group, Department of Neurology,
recommending that [Benjamin] receive full disability
benefits [(Schomer letter)]. . . . On October 30, 2008,
an educational evaluation was prepared by Cheryl Car-
roll, special education teacher at Salem Board of Educa-
tion, Department of Special Education. . . . In Octo-
ber of 2008, a psychological evaluation was prepared
by Donna Zuber, school psychologist at Salem Public
Schools. . . . His overall memory ability is in the very
deficient range. . . . On April 16, 2008, a pediatric neu-
ropsychology consultation was prepared by Marisa
Spann, PhD, clinical neuropsychologist at Yale Univer-
sity School of Medicine. . . . His full-scale IQ was 52.’’
(Citations omitted.)
In the discussion of his findings, the hearing officer
noted that Benjamin suffers from a variety of medical
conditions, including ‘‘autism, attention deficit/hyperac-
tivity disorder, and a significant seizure disorder,’’
which ‘‘make it very difficult for the department to
determine whether [he] should receive [department]
services.’’ The hearing officer explained that the depart-
ment had found in 2011, 2015, and 2018, that he did not
qualify for services primarily on the basis of a disparity
in scores on his intelligence tests during the develop-
mental period.1 The department’s psychologists con-
cluded that his other medical conditions were interfer-
ing with his cognitive functioning and caused the
variations in his test scores. The hearing officer then
stated that ‘‘one could reasonably conclude that [Benja-
min] at the end of the developmental period has an IQ
that does qualify him for [department] services.’’ The
hearing officer explained: ‘‘The psychological report
prepared by Dr. Chris Abildgaard . . . is a comprehen-
sive and thorough report that finds that [Benjamin’s]
IQ is 65, which puts him below the level needed to
qualify for [department] services. . . . The report was
prepared on July 14 and 16 in 2016, when [he] was
seventeen years, eleven months old and at the end of
the developmental period. The examiner in the report
states that, ‘there is about a 90 percent chance that his
true score is between 62 [and] 69 on any given day.’
He classified his overall performance in the extremely
low range, which is equal to 1 percent of people his
age.’’ (Citation omitted.)
The hearing officer further explained: ‘‘The [Abild-
gaard] report also summarizes [Benjamin’s] perfor-
mance on the Vineland Adaptive Behavior Scales . . .
[which is a standardized interview that] was completed
by his mother, and his scores were as follows: Commu-
nication 64, Daily Living 66, Socialization 65 and a Com-
posite score of 67, which [Abildgaard] found to be con-
sistent with his current cognitive potential. These
scores would qualify [Benjamin] for [department] ser-
vices. A more recent analysis of [Benjamin’s] adaptive
skills was done on May 8, 2018, by Dr. Margaret Kardos,
when [he] was age twenty and outside of the develop-
mental period. Even though outside of the develop-
mental period, this report demonstrates that his adap-
tive skills have remained consistent from the evaluation
done in 2016, which was at the end of the developmental
period. The summary in the report finds that [Benja-
min’s] adaptive skills fall in the extremely low range
as reported by both his mother and his teacher. In this
report, we have the benefit of his teacher’s analysis,
which, although [it reflected numbers that were] higher
than the scores [recorded] by his mother . . . still indi-
cated that [Benjamin] was in the extremely low
range. . . .
‘‘The most recent intellectual evaluation of [Benja-
min] by Apex Educational Solutions was done on July
3, 2018, when [he] was twenty years, four months [old]
and outside of the developmental period [(Apex
report)]. The report finds that [Benjamin’s] General
Intellectual Ability was 66 in the very low range. The
examiner noted that [Benjamin] worked very hard and
exerted himself on all aspects of the test, but his overall
level of intellectual functioning fell in the very low
range, which is consistent with the [Abildgaard report
prepared] when [he] was at the end of the develop-
mental period.’’ The hearing officer determined that the
two most recent reports supported the findings in the
two reports performed at the end of the developmental
period that Benjamin’s IQ and his adaptive skills met the
requirements of § 1-1g and entitled him to department
services.
After reviewing the record, on January 28, 2019, the
commissioner issued a final decision (final decision)
notifying Denise that he did not concur with the hearing
officer’s determination that Benjamin is eligible for
department services. In his final decision, the commis-
sioner deleted several of the hearing officer’s findings
of fact and added other findings of fact. Specifically,
the commissioner deleted the findings of fact regarding
the Abildgaard, Moyer, and Kardos reports, and the
Schomer letter. The commissioner added the following
findings of fact: ‘‘In the cognitive assessment that Dr.
Chris Abildgaard completed towards the end of the
developmental period when [Benjamin] was seventeen
years, eleven months [old], the doctor found that [his]
‘[full-scale IQ] falls within the borderline range and is
consistent with his current adaptive functioning.’ . . .
Significantly, in the assessment, Dr. Abildgaard advised:
‘For a more complete developmental history, the reader
is encouraged to reference the psychoeducational eval-
uation conducted by Dr. Erik Mayville in 2013.’ . . .
The assessment noted that all but one of the WAIS-IV
index scores, the [PSI], fell in the borderline range and
that ‘[d]ifficulties in scanning large amounts of visual
stimuli and visual motor coordination may have
impacted . . . [the PSI] results.’ . . . The assessment
indicated, ‘By parent report in the last six months, [Ben-
jamin] has experienced twenty-six seizures. Several
required immediate medical support.’ . . . Dr. Abild-
gaard recommended that [Benjamin] ‘benefits from
longer amounts of processing time . . . when pre-
sented with tasks or directives . . . [he] also benefits
from being allowed to get verbal information out at a
slower pace . . . [and] often knows what he wants to
say, however it will take him slightly longer to get all
those thoughts out.’ . . . He also recommended that
[Benjamin’s] ‘program at the Benhaven Academy is
appropriate at this time and day-to-day programming
should not change based on these results.’ . . .
Accordingly, [Benjamin’s] primary disability of autism
and his programming subsequently did not change. . . .
‘‘In 2011, [Benjamin] was denied eligibility for
[department] services because, on a May, 2010
[Weschler Intelligence Scale for Children—Fourth Edi-
tion (WISC-IV) test], he obtained a full-scale IQ of 87 and
he was functioning in the average range of intelligence.
Moreover, there was ‘cognitive testing indicating he
[was] functioning within at least the high borderline to
average range of measured intelligence.’ . . . In 2015,
[Benjamin] was denied eligibility for [department] ser-
vices because ‘[his] intellectual functioning [was] in the
average range, which is significantly above the intellec-
tual disabled range.’ On a 2013 psychological evaluation,
upon administration of the Stanford Binet [Intelligence
Scales]-V, he ‘earned a full-scale IQ score of 90.’ On a
2013 Wechsler Individual Achievement Test-III (WIAT-
III), ‘his Total Reading Composite Standard Score was
91, Reading Comprehension and Fluency Composite
was 84, Mathematics Composite was 81, and Written
Expression Composite was 91. Of the twenty-six subtest
scores generated by the WIAT-III, twelve were in the
average range, eleven were in the low average range,
and three were in the borderline range.’’ (Citations omit-
ted; emphasis in original.)
The commissioner replaced the discussion section of
the proposed decision with a summary of our Supreme
Court’s decision in Christopher R. v. Commissioner of
Mental Retardation, 277 Conn. 594, 893 A.2d 431 (2006).
Ultimately, the commissioner concluded: ‘‘The record
in the present case simply does not meet the burden
of . . . § 1-1g. Pursuant to [Christopher R.], the expert
staff for [the department] has the authority as granted
by the state legislature to determine whether [Benja-
min’s] scores during the developmental period, and the
testing conducted after, when viewed in their totality
meet the eligibility criteria for an intellectual disability.
[The department] has reviewed all testing and deter-
mined that the test scores do not meet the requisite
criteria. Accordingly, [Benjamin] is not eligible for
[department] services based upon an intellectual dis-
ability, as he does not meet the criteria for services as
defined in . . . § 1-1g.’’
Pursuant to General Statutes § 4-183, the plaintiffs
appealed from the commissioner’s decision to the Supe-
rior Court. The plaintiffs’ appeal raised four issues:
whether (1) the department failed to apply § 1-1g as
amended in 2012, (2) the department failed to consider
Benjamin’s 2016 full-scale IQ score, (3) the depart-
ment’s denial of benefits was not supported by substan-
tial evidence, and (4) the department was estopped
from concluding that Benjamin is ineligible for services
on the basis of statements made by department repre-
sentatives in a 2016 Probate Court proceeding. Follow-
ing briefing and oral argument, the Superior Court, Hon.
Henry S. Cohn, judge trial referee, dismissed the appeal
in a February 24, 2020 memorandum of decision. The
court rejected the plaintiffs’ arguments and concluded
that there was substantial evidence in the record sup-
porting the final decision of the commissioner. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
The plaintiffs’ first claim on appeal is that the final
decision violates § 1-1g. Specifically, the plaintiffs con-
tend that under the plain language of § 1-1g as amended,
the department ‘‘no longer has the discretion to con-
sider more than one intelligence test where, as here,
the applicant presents one full-scale IQ score below
70.’’ We disagree.
We first set forth our standard of review. Although
§ 1-1g was subjected to prior judicial scrutiny in Chris-
topher R., the present case requires us to determine the
effect of subsequent legislative action on our Supreme
Court’s holding in that case. ‘‘[W]e do not defer to the
[agency’s] construction of a statute—a question of
law—when . . . the [provisions] at issue previously
have not been subjected to judicial scrutiny or when
the [agency’s] interpretation has not been time tested.’’
(Internal quotation marks omitted.) Brennan v. Water-
bury, 331 Conn. 672, 683, 207 A.3d 1 (2019). ‘‘In such
a case, our review of those provisions is plenary.’’ Chris-
topher R. v. Commissioner of Mental Retardation,
supra, 277 Conn. 604. We therefore apply plenary review
and established rules of construction.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and [common-law] principles
governing the same general subject matter . . . .’’
(Internal quotation marks omitted.) Meriden v. Free-
dom of Information Commission, 338 Conn. 310, 320–
21, 258 A.3d 1 (2021).
We next set forth the statutory and regulatory
scheme. General Statutes § 17a-212 directs the commis-
sioner of the department to ‘‘adopt regulations . . .
establishing . . . criteria for . . . determining eligi-
bility for services provided by the department . . . .’’
The commissioner promulgated a regulation stating in
relevant part that ‘‘[a] person is eligible for services of
the department if he: (1) is a resident of the State of
Connecticut; and (2) has mental retardation. . . .’’
Regs., Conn. State Agencies § 17a-212-2 (b). The regula-
tion uses the same definition of ‘‘mental retardation’’
as provided in General Statutes (Supp. 2012) § 1-1g.
Regs., Conn. State Agencies § 17a-212-1 (10).
Section 1-1g (a) defines ‘‘ ‘intellectual disability’ ’’2 as
‘‘a significant limitation in intellectual functioning
existing concurrently with deficits in adaptive behavior
that originated during the developmental period before
eighteen years of age.’’ That section further defines
‘‘ ‘significant limitation in intellectual functioning’ ’’ as
‘‘an intelligence quotient more than two standard devia-
tions below the mean as measured by tests of general
intellectual functioning that are individualized, stan-
dardized and clinically and culturally appropriate to the
individual . . . .’’ (Emphasis added.) General Statutes
§ 1-1g (b). The statutory phrase ‘‘ ‘an [IQ] more than
two standard deviations below the mean’ ’’ refers to an
IQ below seventy. Christopher R. v. Commissioner of
Mental Retardation, supra, 277 Conn. 597–98.
Prior to October 1, 2012, General Statutes (Supp.
2012) § 1-1g defined ‘‘ ‘mental retardation’ ’’ as ‘‘a signifi-
cantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior
and manifested during the developmental period.’’ It
further defined ‘‘ ‘general intellectual functioning’ ’’ as
‘‘the results obtained by assessment with one or more of
the individually administered general intelligence tests
developed for that purpose and standardized on a signif-
icantly adequate population and administered by a per-
son or persons formally trained in test administration
. . . .’’ (Emphasis added.) General Statutes (Supp.
2012) § 1-1g (c).
We next turn to a discussion of our Supreme Court’s
decision in Christopher R. v. Commissioner of Mental
Retardation, supra, 277 Conn. 596–97, which addressed
the 2003 revision of § 1-1g. See id., 596 n.2. In that case,
the department initially determined that the plaintiff
was ineligible for services on the basis of a disparity
between the plaintiff’s verbal and performance scores
on the 2002 Weschler Intelligence Scale for Children—
Third Edition (WISC-III) test and on previous tests on
which the plaintiff scored within a normal or average
range. Id. On appeal, our Supreme Court first consid-
ered the question of whether the commissioner ‘‘may
consider more than one general intelligence test to
determine whether an applicant is mentally retarded
and, therefore, is eligible for the department’s services.’’
Id., 606. The court analyzed General Statutes (Rev. to
2003) § 1-1g, which used the term ‘‘mental retardation’’;
see footnote 2 of this opinion; and found persuasive
that the statute referred to ‘‘the results obtained by
assessment with one or more of the individually
administered general intelligence tests developed for
that purpose . . . .’’ (Emphasis in original; internal
quotation marks omitted.) Christopher R. v. Commis-
sioner of Mental Retardation, supra, 607–608. The court
reasoned: ‘‘By construing the phrase ‘one or more’ to
mean that more than one general intelligence test
should be considered, if available, we give effect to
each word in the statute. By contrast, in order to adopt a
construction under which an applicant must be deemed
mentally retarded upon submitting one test with a full
scale score below seventy, irrespective of other test
scores—we would have to read [the] words ‘or more’
out of the statute. Indeed, we essentially would have
to read the phrase as if it stated ‘at least one’ general
intelligence test, instead of ‘one or more’ intelligence
tests. This court, however, will not substitute language
for that chosen by the legislature. . . .
‘‘Moreover, ‘[i]n construing a statute, common sense
must be used and courts must assume that a reasonable
and rational result was intended.’ . . . Consider,
therefore, a hypothetical situation in which an applicant
has taken four general intelligence tests over a period
of several years, with the three most recent tests
reflecting full scale scores of ninety, and the earliest
test reflecting a full scale score of sixty-nine. It would
be illogical to require that the department deem an
applicant eligible for services, as the plaintiff contends,
simply because of one anomalous test score.’’ (Citations
omitted; emphasis in original; footnote omitted.) Id.,
608–609.
The court next turned to the question of whether the
commissioner exceeded his authority when, in light of
conflicting test results, he considered evidence other
than general intelligence test full-scale scores. Id., 611.
The court stated: ‘‘Faced with such conflicting scores,
the defendant necessarily was required to make a deter-
mination as to whether the plaintiff’s general intellec-
tual functioning was in fact significantly subaverage.
Nothing in the statutes or regulations limits the defen-
dant’s discretion in this regard, and the defendant is
especially qualified to make such a determination. . . .
Indeed, we generally defer to an agency with expertise
in matters requiring such a technical, case-by-case
determination.’’ (Citations omitted.) Id.
Noting that ‘‘such a factual determination must be
sustained if it is reasonably supported by substantial
evidence in the record taken as a whole’’; id.; the court
considered the conclusions of Virginia Wohlstrom, the
school psychologist who administered the 2002 WISC-
III test and determined that the plaintiff had the ability
to function at a general intellectual level that was higher
than his full-scale score of sixty-six on that test. Id.,
612–13. Wohlstrom highlighted several issues regarding
the test results. Id. Specifically, Wohlstrom concluded
‘‘that the plaintiff’s low performance score was reflec-
tive more of the fact that it took the plaintiff an exces-
sive amount of time to complete his work, than that he
actually was performing in the intellectually deficient
range. She also noted that the plaintiff’s verbal score
was skewed downward because of a significantly weak
score in a subtest measuring comprehension. Wohl-
strom opined that the plaintiff’s pervasive develop-
mental disorder affected that score, and concluded that
[the plaintiff’s] verbal functioning in non-social situa-
tions, such as the classroom, is in the [a]verage range.
Wohlstrom also noted that the plaintiff was functioning
at the upper level of his classes, typically getting B
grades.’’ (Internal quotation marks omitted.) Id. The
court noted that Wohlstrom’s assessment was consis-
tent with previous intelligence tests administered to the
plaintiff, on which the plaintiff had scored within the
average range. Id., 613.
The court next turned to the commissioner’s decision
to examine separately the tests’ verbal and performance
scores, as well as subtests within those scores. Id., 614.
Specifically, the department’s psychologist, in his initial
determination of ineligibility, had referenced, inter alia,
the plaintiff’s average score on a 1998 Test of Nonverbal
Intelligence-2, which the psychologist found significant
when coupled with the plaintiff’s verbal score of eighty
on the 2002 WISC-III test. Id., 613. The court determined
that the commissioner’s decision to examine the scores
separately was supported by the Diagnostic and Statisti-
cal Manual of Mental Disorders, which provided: ‘‘When
there is significant scatter in the subtest scores, the
profile of strengths and weaknesses, rather than the
mathematically derived full-scale IQ, will more accu-
rately reflect the person’s learning abilities. When there
is a marked discrepancy across verbal and performance
scores, averaging to obtain a full-scale IQ score can be
misleading.’’ (Internal quotation marks omitted.) Id.,
614, quoting American Psychiatric Association, Diag-
nostic and Statistical Manual of Mental Disorders (4th
Ed. 1994) p. 40. The court noted that the clinical neuro-
psychologist ‘‘who had administered the plaintiff’s 1997
WISC-III test, found the broad disparity between the
plaintiff’s verbal and performance scores to be clinically
significant.’’ Christopher R. v. Commissioner of Mental
Retardation, supra, 277 Conn. 614.
Moreover, the court explained that the record reflected
several psychological, social and medical evaluations
performed over the years that had diagnosed the plain-
tiff as having a learning disability, pervasive develop-
mental disorder, and obsessive compulsive disorder.
Id. The psychologist that performed the 2002 assess-
ment and the neuropsychologist who performed the
1997 assessment both opined that certain of the plain-
tiff’s disorders may have impacted his scores. Id. The
court concluded that the commissioner properly could
have relied on such evidence. Id., 614–15. Lastly, the
court stated that the commissioner ‘‘was entitled to
consider the absence of any reference to mental retarda-
tion’’ in the numerous assessments performed. Id., 615.
Ultimately, the court concluded that the commission-
er’s decision ‘‘was supported by substantial evidence
in the record.’’ Id., 616.
With that background in mind, we turn to the plain-
tiffs’ claim that, under the amended statute, the depart-
ment ‘‘no longer has the discretion to consider more
than one intelligence test where, as here, the applicant
presents one full-scale IQ score below 70.’’
The following additional procedural history is rele-
vant to this claim. The Superior Court addressed the
plaintiffs’ claim as follows: ‘‘The plaintiffs claim that
with the amendment of 2012 to § 1-1g, deleting the
phrase ‘one or more,’ the [department] may not review
more than one score in determining eligibility. Here
there are two test scores that meet the ‘one-score’ defi-
nition. The plaintiffs claim that under [General Statutes
§ 1-1 (f)], the use of a plural may also mean the singular.
On the other hand, as the [department] points out, the
amended § 1-1g (b) does retain the word ‘tests’ in two
places. The use of the plural indicates that the legisla-
ture did not intend to allow one test to be determinative.
According to the [department], [General Statutes] § 1-
1a requires the court to give a common meaning to the
amended statute. Therefore, Christopher R. continues
to be a valid precedent that the [department] was
required to rely on.’’ (Footnote omitted.) Although the
Superior Court found the statute to be plain and unam-
biguous, it stated that, even if it used legislative history,
‘‘it is clear that the intent of the legislature was to
abolish a pejorative definition in § 1-1g (b), and not to
alter Christopher R.’’
On appeal, the plaintiffs first argue that Christopher
R. is no longer good law in light of the 2012 amendments
to § 1-1g. Specifically, they emphasize that the ‘‘legisla-
ture is always presumed to be aware of all existing
statutes and the effect that its action or nonaction will
have on any of them . . . and it also is presumed to
be aware of existing judicial interpretations of those
statutes.’’ (Citation omitted; internal quotation marks
omitted.) AvalonBay Communities, Inc. v. Zoning
Commission, 87 Conn. App. 537, 559, 867 A.2d 37(2005), aff’d, 280 Conn. 405, 908 A.2d 1033 (2006). The
plaintiffs maintain that the legislature was ‘‘aware of
the significance ascribed to the phrase ‘one or more’
in the text of § 1-1g by the Supreme Court in Christopher
R.,’’ and the Supreme Court’s express reliance on that
phrase in stating that, ‘‘to adopt a construction under
which an applicant must be deemed mentally retarded
upon submitting one test with a full scale score below
seventy, irrespective of other test scores—we would
have to read [the] words ‘or more’ out of the statute.’’
Christopher R. v. Commissioner of Mental Retarda-
tion, supra, 277 Conn. 608. Thus, according to the plain-
tiffs, the removal of the words ‘‘one or more’’ must be
interpreted to mean that an applicant who presents
one test with a full-scale score below seventy must be
deemed to have an intellectual disability.
We disagree with the plaintiffs’ contention that the
2012 amendments to § 1-1g, which replaced the words
‘‘one or more’’ with the word ‘‘tests,’’ renders Christo-
pher R. no longer good law. Notably, our Supreme Court
did not rely solely on the legislature’s use of the term
‘‘one or more’’ but also relied on common sense and
logic, considering a hypothetical situation in which
three recent tests reflected full-scale scores of ninety
and the earliest test reflected a full-scale score of sixty-
nine. See Christopher R. v. Commissioner of Mental
Retardation, supra, 277 Conn. 609. The court stated
that ‘‘[i]t would be illogical to require that the depart-
ment deem an applicant eligible for services . . . sim-
ply because of one anomalous test score.’’ Id. The court
also relied on the commissioner’s special qualification
to make determinations of eligibility, noting that
‘‘[n]othing in the statutes or regulations limits the [com-
missioner’s] discretion in this regard . . . .’’ Id., 611.
Moreover, as discussed further subsequently in this
opinion, we do not read the substitution of ‘‘tests’’ for
‘‘one or more’’ to evidence an intention to eliminate the
plural nature of the phrase. Accordingly, we conclude
that Christopher R. remains good law and continues
to control the meaning of § 1-1g.
Second, the plaintiffs argue that the Superior Court’s
‘‘assumption that the legislature’s use of a plural noun
is significant in statutory interpretation is incorrect,’’
citing § 1-1 (f), which provides: ‘‘Words importing the
singular number may extend and be applied to several
persons or things, and words importing the plural num-
ber may include the singular.’’ The plaintiffs further
challenge the Superior Court’s reference to ‘‘tests’’ as
appearing twice in the statute, arguing that the use of
the plural is of significance only when the legislature
uses both the plural and singular terms within the stat-
ute. See Covenant Insurance Co. v. Coon, 220 Conn.
30, 36 n.6, 594 A.2d 977 (1991) (‘‘the fact that the legisla-
ture used both plural and singular terms in the statute
is a strong indication that the use of the singular was
deliberate’’).3
We are not persuaded by the plaintiffs’ argument
that the use of the plural term ‘‘tests’’ is insignificant.
‘‘[A]lthough . . . § 1-1 (f) provides that [w]ords
importing the singular number may extend and be
applied to several persons or things, and words
importing the plural number may include the singular,
we have held that because § 1-1 (f) uses the word may
it is clearly directory and not mandatory. . . . [S]uch
statutory expressions are legislative statements of a
general principle of interpretation. . . . The principle
does not require that singular and plural word forms
have interchangeable effect, and discrete applications
are favored except where the contrary intent or reason-
able understanding is affirmatively indicated.’’ (Internal
quotation marks omitted.) State v. Brown, 310 Conn.
693, 704, 80 A.3d 878 (2013). There is no such contrary
intent or reasonable understanding affirmatively indi-
cated in § 1-1g. Rather, the plain meaning of the word
‘‘tests’’ in its plural form refers to more than one test.4
Accordingly, we conclude that the 2012 amendment
to § 1-1g does not preclude the commissioner from con-
sidering more than one intelligence test.
II
Having determined that § 1-1g, as amended, contin-
ues to permit the commissioner to consider more than
one test score, we turn to the plaintiffs’ second, and
alternative, claim that ‘‘the statute requires the defen-
dants to analyze all of the applicant’s full-scale IQ scores
as part of [their] final decision.’’ Specifically, the plain-
tiffs claim that the commissioner’s failure to consider
Benjamin’s January, 2016 full-scale IQ score violates § 1-
1g. The defendants respond that ‘‘[t]he evidence both
in the record and the final decision itself shows that
[the department] did indeed consider these results but
interpreted them differently than the plaintiff.’’ We
agree with the defendants.
The following additional procedural history is rele-
vant to this claim. As noted previously, the proposed
decision stated, with respect to the Abildgaard report
that contained the 2016 score, that Benjamin’s ‘‘full-
scale IQ score was 65 on the WAIS-IV, his VCI score
was 74 (which falls in the borderline range), his PRI
score was 73 (which falls in the borderline range), his
WMI score was 74 (which falls in the borderline range),
and his PSI score was 59 (which fell in the extremely
low range and is effected by his seizure disorder).’’
Although the final decision deleted this paragraph, it
added other findings related to the Abildgaard report.
Specifically, the commissioner found: ‘‘In the cognitive
assessment that Dr. Chris Abildgaard completed
towards the end of the developmental period when
[Benjamin] was seventeen years, eleven months [old],
the doctor found that [his] ‘[full-scale IQ] falls within
the borderline range and is consistent with his current
adaptive functioning.’ . . . Significantly, in the assess-
ment, Dr. Abildgaard advised: ‘For a more complete
developmental history, the reader is encouraged to ref-
erence the psychoeducational evaluation conducted by
Dr. Erik Mayville in 2013.’ . . . The assessment noted
that all but one of the WAIS-IV index scores, the [PSI],
fell in the borderline range and that ‘[d]ifficulties in
scanning large amounts of visual stimuli and visual
motor coordination may have impacted . . . [the PSI]
results.’ . . . The assessment indicated, ‘By parent
report in the last six months, [Benjamin] has experi-
enced twenty-six seizures. Several required immediate
medical support.’ . . . Dr. Abildgaard recommended
that [Benjamin] ‘benefits from longer amounts of pro-
cessing time . . . when presented with tasks or direc-
tives . . . [he] also benefits from being allowed to get
verbal information out at a slower pace . . . [and]
often knows what he wants to say, however it will take
him slightly longer to get all those thoughts out.’ . . .
He also recommended that [Benjamin’s] ‘program at
the Benhaven Academy is appropriate at this time and
day-to-day programming should not change based on
these results.’ . . . Accordingly, [Benjamin’s] primary
disability of autism and his programming subsequently
did not change.’’ (Citations omitted; emphasis in origi-
nal.)
In its memorandum of decision, the Superior Court,
applying the substantial evidence test, determined that
it ‘‘cannot set aside the . . . commissioner’s conclu-
sion that Benjamin’s test scores from 2016 were not
properly evaluated. The commissioner concluded that
Dr. Abildgaard’s report showed that Benjamin’s scores
were in the borderline range, except for processing
speed. The commissioner used properly the full IQ
score, but took into account subtests.’’
We first set forth our standard of review of this claim.
The plaintiffs claim that their contention that the statute
requires the department to consider all scores is subject
to plenary review. The plaintiffs’ statutory interpreta-
tion claim, which would compel plenary review, is only
relevant, however, to the extent that the commissioner
failed to consider the 2016 score, which the defendants
dispute. We first address that threshold question, which,
as the defendants suggest, is subject to review for sub-
stantial evidence. See Costello v. Commissioner of
Developmental Services, 128 Conn. App. 286, 290, 16
A.3d 811 (2011) (claim that commissioner ignored sub-
stantial evidence in record was subject to review for
substantial evidence in record to support agency’s fac-
tual findings).
‘‘According to our well established standards,
[r]eview of an administrative agency decision requires
a court to determine whether there is substantial evi-
dence in the administrative record to support the
agency’s findings of basic fact and whether the conclu-
sions drawn from those facts are reasonable. . . . Nei-
ther this court nor the trial court may retry the case or
substitute its own judgment for that of the administra-
tive agency on the weight of the evidence or questions
of fact. . . . Our ultimate duty is to determine, in view
of all of the evidence, whether the agency, in issuing
its order, acted unreasonably, arbitrarily, illegally or in
abuse of its discretion. . . . [A]n agency’s factual and
discretionary determinations are to be accorded consid-
erable weight by the courts.’’ (Internal quotation marks
omitted.) Id.We disagree with the plaintiffs’ argument that the
commissioner failed to consider Benjamin’s full-scale
IQ score as reported in the Abildgaard report. Although
the commissioner deleted the finding pertaining to the
full-scale score from his final decision, he did so in
conjunction with his addition of detailed findings
regarding that assessment, which findings were sup-
ported by substantial evidence in the record. Specifi-
cally, the commissioner considered that Abildgaard’s
report indicated that Benjamin’s full-scale IQ score fell
‘‘ ‘within the borderline range and [was] consistent with
his current adaptive functioning.’ ’’ The commissioner
noted that all but one of the WAIS-IV index scores—
the PSI—fell within the borderline range. The commis-
sioner further noted that Abildgaard stated in his report
that ‘‘ ‘[d]ifficulties in scanning large amounts of visual
stimuli and visual motor coordination may have
impacted’ ’’ the PSI results. Lastly, the commissioner
referenced Abildgaard’s notation that Benjamin’s
mother had reported that he had experienced twenty-
six seizures in the preceding six months. The separate
examination of the subtest scores and consideration
of other factors impacting such scores is within the
authority of the commissioner.5 See Christopher R. v.
Commissioner of Mental Retardation, supra, 277 Conn.
614–15. Accordingly, we reject the plaintiffs’ argument
that the commissioner failed to consider the 2016 full-
scale IQ score.
III
The plaintiffs’ third claim on appeal is that the Supe-
rior Court erred in refusing to take judicial notice of
certain Probate Court documents ‘‘for the purpose of
establishing that [the department] took the position in
the Probate Court that Benjamin has an intellectual
disability pursuant to § 1-1g, and the Probate Court
adopted [the department’s] position.’’ We disagree.
The following additional procedural history is rele-
vant. In their administrative appeal to the Superior
Court, the plaintiffs represented that Denise had been
appointed plenary guardian of Benjamin, following a
guardianship hearing in the Probate Court. The plain-
tiffs attached to their administrative appeal the Probate
Court order. The plaintiffs also alleged in their appeal
that, prior to the Probate Court hearing, two assessment
team members from the department had filed with the
Probate Court an evaluation in which they represented
that Benjamin is ‘‘ ‘a person with intellectual disability
as defined in . . . § 1-1g.’ ’’ The plaintiffs attached to
their administrative appeal a copy of the evaluation.
The plaintiffs alleged that the Probate Court’s order
found that Benjamin ‘‘ ‘is by reason of the severity of his
intellectual disability, totally unable to meet essential
requirements for his physical health or safety, and
totally unable to make informed decisions about mat-
ters related to his care.’ ’’ On the basis of the representa-
tions of the assessment team members made to the
Probate Court, the plaintiffs alleged in their administra-
tive appeal that the department was barred by the doc-
trine of judicial estoppel from representing to the Supe-
rior Court that Benjamin did not have an intellectual
disability pursuant to § 1-1g.
The Superior Court’s scheduling order included a
date by which the plaintiffs could file a motion to pres-
ent additional evidence to supplement the record pursu-
ant to § 4-183 (h). The plaintiffs did not file any such
motion. In their brief to the Superior Court, the plaintiffs
again referenced and attached as exhibits the Probate
Court order and evaluation (Probate Court documents)
in support of their claim of judicial estoppel and main-
tained that the court could take judicial notice of such
records. The parties thereafter filed additional briefing
on the issue and discussed it at oral argument.
In its memorandum of decision, the Superior Court
explained that Denise did not introduce into the admin-
istrative record the Probate Court documents and noted
that she was self-represented at the hearing before the
hearing officer and during the commissioner’s review
of the proposed decision. The court explained that the
plaintiffs, who had retained counsel to represent them
in their administrative appeal, now requested that the
court take judicial notice of the Probate Court docu-
ments in support of their claim of judicial estoppel. The
court rejected their request. First, the court stated that
judicial notice to supplement a record in an administra-
tive appeal was rejected in Blinkoff v. Commission on
Human Rights & Opportunities, 129 Conn. App. 714,
722, 20 A.3d 1272, cert. denied, 302 Conn. 922, 28 A.3d
341 (2011). The court found significant that the plaintiffs
chose to rely only on the doctrine of judicial notice
rather than filing a motion to supplement the record
pursuant to § 4-183 (h).
The court then stated that, ‘‘even if [it] were to take
judicial notice of the [department’s] declarations in the
Probate Court, the court would have to weigh these
averments against the findings in the final decision.’’
The court noted that, pursuant to § 4-183 (j), it is prohib-
ited from substituting its judgment for that of the agency
as to the weight of the evidence on questions of fact.
The court next determined that the Probate Court docu-
ments were not conclusive. Having reviewed the two
documents, the court stated that, although ‘‘the Probate
Court believed Benjamin was in need of a guardian,
because of his developmental challenges, it did not state
that he was . . . eligible [for the department’s ser-
vices].’’ The court noted that ‘‘a panel of the [depart-
ment] found Benjamin to qualify for § 1-1g services, but
not on the basis of psychological tests.’’
On appeal, the plaintiffs reiterate their argument that
the Superior Court was permitted to take judicial notice
of the Probate Court documents and that it erred in
refusing to do so.
We first set forth our standard of review. Whether
the court properly applied § 4-183 (h) and (j) in denying
the plaintiffs’ request that it take judicial notice of cer-
tain documents presents a question of law subject to
plenary review. See Estela v. Bristol Hospital, Inc., 179
Conn. App. 196, 207, 180 A.3d 595 (2018).
We begin our analysis with Blinkoff v. Commission
on Human Rights & Opportunities, supra, 129 Conn.
App. 715, in which the plaintiff appealed from the judg-
ment of the trial court dismissing her administrative
appeal from the decision of the Commission on Human
Rights and Opportunities. She argued, inter alia, that
the Superior Court improperly had failed to consider
certain statements and documents in its review. Id. That
is, the plaintiff had filed with the Superior Court several
‘‘motion[s] to take judicial notice of public documents,’’
attaching exhibits that were not in evidence at the
agency hearing. (Internal quotation marks omitted.) Id.,
722. The Superior Court denied the motions, stating
that its review of the referee’s decision was limited to
the administrative record. Id. On appeal to this court,
the plaintiff argued that the Superior Court should have
considered the documents under the doctrines of judi-
cial admissions and judicial estoppel. Id., 723. This court
concluded that the Superior Court ‘‘properly did not
consider the newly offered statements and docu-
ments.’’ Id.In Blinkoff, this court supported its decision by citing
§ 4-183 (i); id.; which provides in relevant part that the
administrative appeal ‘‘shall be confined to the record.
. . .’’ General Statutes § 4-183 (i). Our statutes, how-
ever, do provide a procedure by which a party to an
administrative appeal may file a motion with the Supe-
rior Court seeking a remand to the agency to present
additional evidence. Section 4-183 (h) provides: ‘‘If,
before the date set for hearing on the merits of an
appeal, application is made to the court for leave to
present additional evidence, and it is shown to the satis-
faction of the court that the additional evidence is mate-
rial and that there were good reasons for failure to
present it in the proceeding before the agency, the court
may order that the additional evidence be taken before
the agency upon conditions determined by the court.
The agency may modify its findings and decision by
reason of the additional evidence and shall file that
evidence and any modifications, new findings, or deci-
sions with the reviewing court.’’
Pursuant to § 4-183 (h), ‘‘a trial court has discretion
regarding whether to grant or deny a motion brought
pursuant to the statute.’’ Salmon v. Dept. of Public
Health & Addiction Services, 259 Conn. 288, 315, 788
A.2d 1199 (2002). In order for a party to obtain a remand
to the agency for the taking of additional evidence, the
party must demonstrate that ‘‘(1) the proffered evidence
was material; and (2) there were good reasons for [the]
failure to present it at the [agency] hearing.’’ Id., 315–16.
‘‘[A] court order granting such [an application] does not
vitiate the department’s original decision, but instead
permits [it] to consider new evidence and to modify its
decision as necessary. Thus, a remand under § 4-183
(h) does not offer the parties an opportunity to relitigate
the case ab initio, but rather represents a continuation
of the original agency proceeding.’’ (Internal quotation
marks omitted.) Clark v. Commissioner of Motor Vehi-
cles, 183 Conn. App. 426, 442, 193 A.3d 79 (2018).
Under the separate doctrine of judicial notice, ‘‘[c]ourt
records may be judicially noticed for their existence,
content and legal effect. . . . Care should be taken
[however] to avoid noticing judicial records in one case
as evidence upon which to find facts in another case. For
example, one can judicially notice that certain testimony
was given in a case, but not that it was true.’’ (Internal
quotation marks omitted.) O’Connor v. Larocque, 302
Conn. 562, 568 n.6, 31 A.3d 1 (2011). The plaintiffs main-
tain that ‘‘[t]he doctrine of judicial notice also applies
to administrative agencies.’’ West Hartford v. Freedom
of Information Commission, 218 Conn. 256, 264, 588
A.2d 1368 (1991); id. (agency reasonably could have
taken judicial notice of fact that addresses are available
in public directories). Specifically, the plaintiffs rely on
General Statutes § 4-178, which governs evidence in
contested cases in agency proceedings and provides in
relevant part that ‘‘notice may be taken of judicially
cognizable facts . . . .’’6 It is the agency though that
can take judicial notice as part of its fact-finding pro-
cess, not the Superior Court, which is reviewing the
decision of the agency on the basis of the record before
it. Consequently, § 4-178 is inapplicable in the present
case because the plaintiffs did not request the agency,
the department in this case, to take judicial notice of
the Probate Court documents.
Significantly, the plaintiffs failed to file with the Supe-
rior Court an application for leave to present additional
evidence, despite there being a deadline explicitly pro-
vided in the scheduling order for such motions. Had
they done so, and had they met the statutory require-
ments, the Superior Court would have considered the
request and could have ordered that the Probate Court
documents be taken before the department, which
would then have the opportunity to modify its findings
and decision by reason of that evidence. Rather than
avail themselves of the statutory procedure, the plain-
tiffs’ counsel expressed his opinion, during oral argu-
ment before the Superior Court, that ‘‘judicial notice is
an option to get this done . . . quick.’’ Indeed, the
plaintiffs’ counsel requested that the trial court itself
consider such documents pursuant to the doctrine of
judicial notice, rather than utilize the statutory process
available for remand to the department to consider the
evidence in the first place.
As noted previously, the plaintiffs sought to introduce
the Probate Court documents in order to assert a claim
of judicial estoppel. The Superior Court concluded, and
we agree, that even if it had taken judicial notice of the
documents, it would have resulted in the Superior Court
weighing the evidence, which is inappropriate in light
of its restrictive standard of review. See General Stat-
utes § 4-183 (j) (‘‘[t]he court shall not substitute its
judgment for that of the agency as to the weight of the
evidence on questions of fact’’). On the basis of the
plaintiffs’ failure to take advantage of the statutory pro-
cess by which they could seek to have additional evi-
dence taken before the agency, and the violation of
§ 4-183 that would have necessarily resulted from the
Superior Court taking judicial notice of the Probate
Court documents, we conclude that the court properly
declined to take judicial notice of the documents.
IV
The plaintiffs’ next claim on appeal is that the Supe-
rior Court erred in refusing to apply the doctrine of
judicial estoppel.7 Specifically, the plaintiffs claim that
the defendants are estopped from taking the position
that Benjamin does not have an intellectual disability as
defined by § 1-1g on the basis of earlier representations,
made by representatives of the department to the Pro-
bate Court that Benjamin is ‘‘ ‘a person with intellectual
disability as defined in . . . § 1-1g.’ ’’ The plaintiffs’
judicial estoppel argument is premised on representa-
tions made in the Probate Court documents that were
not part of the administrative record. Because, as we
concluded in part III of this opinion, the Superior Court
properly denied the plaintiffs’ request to take judicial
notice of the Probate Court documents, the court prop-
erly declined to invoke the doctrine of judicial estoppel
on the basis of the representations made therein.
V
The plaintiffs’ final claim on appeal is that the Supe-
rior Court ‘‘erred in ruling that the final decision is
supported by substantial record evidence.’’ The plain-
tiffs initially argue that the commissioner’s reliance on
intelligence test scores from 2010 and 2013, rather than
the 2016 Abildgaard report and the 2018 Apex report,
was arbitrary and capricious. Next, the plaintiffs argue
that the final decision ‘‘made several invalid and insuffi-
cient findings, and therefore, the [Superior Court] erred
in failing to remand the case for further proceedings.’’
We conclude that the decision denying the plaintiffs’
application was supported by substantial evidence.
As previously stated in part II of this opinion,
addressing the plaintiffs’ related claim, ‘‘[r]eview of an
administrative agency decision requires a court to deter-
mine whether there is substantial evidence in the admin-
istrative record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable.’’ (Internal quotation marks omit-
ted.) Costello v. Commissioner of Developmental Ser-
vices, supra, 128 Conn. App. 290. ‘‘This so-called sub-
stantial evidence rule is similar to the sufficiency of the
evidence standard applied in judicial review of jury
verdicts, and evidence is sufficient to sustain an agency
finding if it affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . The
reviewing court must take into account [that there is]
contradictory evidence in the record . . . but the pos-
sibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative
agency’s finding from being supported by substantial
evidence . . . .’’ (Internal quotation marks omitted.)
Christopher R. v. Commissioner of Mental Retarda-
tion, supra, 277 Conn. 611–12.
We first address the plaintiffs’ challenge to the com-
missioner’s reliance on earlier intelligence test scores
rather than more recent test scores. The plaintiffs’ point
to Benjamin’s full-scale scores on his two most recent
evaluations in 2016 and 2018, which were 65 and 66,
respectively, as demonstrating ‘‘the absence of substan-
tial evidence to support the defendants’ final decision
to deny services to Benjamin.’’ We already have dis-
cussed the commissioner’s use of the 2016 score in this
opinion; see part II of this opinion; and we focus on
the 2018 score here.
We disagree with the plaintiffs’ contention that the
final decision fails to acknowledge the 2018 score. The
hearing officer’s proposed findings stated that the Apex
report was prepared in 2018, when Benjamin was
twenty years and four months old. Thus, the report
was prepared outside of the developmental period. See
General Statutes § 1-1g (a) (defining ‘‘ ‘intellectual dis-
ability’ ’’ as ‘‘a significant limitation in intellectual func-
tioning existing concurrently with deficits in adaptive
behavior that originated during the developmental
period before eighteen years of age’’ (emphasis added)).
Although the final decision deleted the hearing officer’s
proposed finding related to the Apex report, the com-
missioner in his final decision stated that the depart-
ment has the authority ‘‘to determine whether [Benja-
min’s] scores during the developmental period, and the
testing conducted after,’’ meet the eligibility criteria.
(Emphasis added.) Immediately following this state-
ment, the commissioner reported that the department
had reviewed ‘‘all testing and determined that the test
scores do not meet the requisite criteria.’’ (Emphasis
added.) Accordingly, we are not persuaded that the
commissioner failed to acknowledge the 2018 test.
With respect to the plaintiffs’ challenges to the factual
findings as invalid and insufficient, we first examine
the commissioner’s finding related to the 2010 WISC-
IV test results. The finding at issue states: ‘‘In 2011,
[Benjamin] was denied eligibility for [department] ser-
vices because, on a May, 2010 WISC-IV [test], he
obtained a full-scale IQ of 87 and he was functioning
in the average range of intelligence. Moreover, there
was ‘cognitive testing indicating he [was] functioning
within at least the high borderline to average range
of measured intelligence.’ ’’ The plaintiffs reference a
March 30, 2011 letter, authored by H. Steven Zucker-
man, a department psychologist, which was entered
into evidence before the agency proceedings and which
states that the full-scale IQ score from the May, 2010
WISC-IV test ‘‘is not interpretable.’’ Specifically, the let-
ter provided: ‘‘According to the [b]ook, Essentials of
the WISC-IV Assessment by Alan S. Kaufman and Dawn
P. Flanagan published in 2004, and [t]echnical [n]otes
from the [p]ublishers, you cannot [utilize] or interpret
a [full-scale] IQ if the difference between any [two] of
the indexes are greater than 23 points (i.e., 1 1/2 Stan-
dard Deviations). As one can see from the above Stan-
dard Scores, this is the case in more than one of the
Standard Scores. The [PSI] is 44 points below the [PRI],
and the [WMI] is 24 points below the [PRI]. Thus the
[full-scale] IQ is not interpretable.
‘‘One therefore must examine all the indexes sepa-
rately, and if possible, one compute[s] a General Ability
Index (GAI) Standard [Score]. The GAI serves as a mea-
sure of the individual[’s] true cognitive abilities. The
examiner did not compute the GAI, however the
[d]epartment did, and it was 99. A GAI Standard Score
of 99, attained during the developmental period, is 30
IQ points above what is considered to be the mentally
retarded range of measured intelligence (i.e., a score
of 69 or below), and is within the [a]verage [r]ange of
[m]easured [i]ntelligence. Therefore, as there are not
concurrent deficits in both adaptive and cognitive abili-
ties, as . . . § 1-1g requires, this individual is not eligi-
ble for the services of the [d]epartment.’’8
We agree with the plaintiffs that the commissioner’s
finding misstates the basis for the 2011 denial of eligibil-
ity. The defendants argue that the misstatement does
not require a remand because, as Zuckerman explained
later in the letter, there was an alternate method of
scoring the test by calculating a GAI. As the defendants
recognize, however, there is no indication from the final
decision that the commissioner relied on the alternate
method of scoring. To the contrary, the commissioner
specifically cited the full-scale score of 87.
Pursuant to § 4-183 (j), ‘‘[t]he court shall affirm the
decision of the agency unless the court finds that sub-
stantial rights of the person appealing have been preju-
diced because the administrative findings . . . are
. . . clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record . . . .’’
We cannot conclude that the commissioner’s misstate-
ment of the basis for the 2011 denial of eligibility has
prejudiced the plaintiffs. Although the commissioner
indicated that Benjamin was denied eligibility in 2011,
on the basis of the 2010 test results, the commissioner’s
other findings addressed Benjamin’s 2015 denial of eligi-
bility and, more comprehensively, the 2016 Abildgaard
report. See part II of this opinion. Thus, the commission-
er’s determination of ineligibility remains supported by
substantial evidence in the record, even excluding the
2010 results from consideration.
Second, the plaintiffs argue that the commissioner
improperly relied on the testimony of Kathleen Murphy,
the director of eligibility for the department, as to her
subjective opinion regarding Abildgaard’s finding that
Benjamin’s full-scale IQ score ‘‘falls within the border-
line range . . . .’’ Specifically, they point to Murphy’s
testimony that ‘‘Abildgaard . . . felt . . . that there
was so much variability, there was so much going on
with [Benjamin’s] seizure disorder, attentional issues,
that he didn’t seem to be functioning in the intellectually
disabled range but rather in the borderline range.’’ The
plaintiffs contend that Abildgaard’s reference to Benja-
min’s score as falling within the borderline range is a
scrivener’s error. They point to a notation on a different
page of Abildgaard’s report indicating that his full-scale
score fell within the classification ‘‘extremely low.’’
Moreover, they argue that Abildgaard stated that Benja-
min’s full-scale IQ score is ‘‘ ‘consistent with his current
adaptive functioning,’ ’’ which he had found to be within
the ‘‘ ‘low range.’ ’’
We reject the plaintiffs’ argument regarding Murphy’s
testimony. In his final decision, the commissioner
directly quoted Abildgaard’s statement, from the
‘‘Impressions’’ section of the report, that Benjamin’s
full-scale IQ score ‘‘falls within the borderline range
. . . .’’ The final decision further references and dis-
cusses Abildgaard’s finding and recommendations
made in his report, rather than Murphy’s testimony
regarding that report. To the extent that the plaintiffs
seek to challenge the commissioner’s findings with
respect to Abildgaard’s statement on the basis of other
statements included within the same report, we cannot
conclude that the commissioner’s findings were
improper. ‘‘Neither [the appellate] court nor the trial
court may retry the case or substitute its own judgment
for that of the administrative agency on the weight of
the evidence or questions of fact.’’ (Internal quotation
marks omitted.) Christopher R. v. Commissioner of
Mental Retardation, supra, 277 Conn. 603.
Third, the plaintiffs challenge the commissioner’s
reliance on the subtest scores from the Abildgaard
report, arguing that there was no record evidence to
support the decision to analyze the subtest scores sepa-
rate from the full-scale score. The plaintiffs distinguish
our Supreme Court’s approval, in Christopher R., of
separate examination of the subtest scores on two
bases. First, they note that in Christopher R., the depart-
ment’s decision to examine the subtest scores sepa-
rately was supported by the Diagnostic and Statistical
Manual of Mental Disorders, which provided that
‘‘ ‘[w]hen there is significant scatter in the subtest
scores, the profile of strengths and weaknesses, rather
than the mathematically derived full-scale IQ, will more
accurately reflect the person’s learning abilities. When
there is a marked discrepancy across verbal and perfor-
mance scores, averaging to obtain a full-scale IQ score
can be misleading.’ ’’ Id., 614. Second, they note that,
in Christopher R., ‘‘the clinical neuropsychologist at
the Yale University School of Medicine who had admin-
istered the plaintiff’s 1997 WISC-III test, found the broad
disparity between the plaintiff’s verbal and performance
scores to be clinically significant.’’ Id. The plaintiffs
assert that, in contrast with Christopher R., the depart-
ment in the present case did not introduce any expert
evidence to support its decision to examine separately
Benjamin’s subtest scores from his full-scale IQ score
as set forth in the Abildgaard report.
The defendants respond, inter alia, that ‘‘[t]he plain-
tiffs misinterpret the holding in Christopher R. . . .’’
They maintain that the court in Christopher R. ‘‘did not
limit the circumstances upon which [the department]
could look to and rely upon subtest scores to those
articulated by the plaintiff[s].’’ We agree with the defen-
dants that the commissioner’s consideration of addi-
tional evidence beyond Benjamin’s full-scale IQ scores
was supported by substantial evidence and did not run
afoul of Christopher R. In noting that all but one of
Benjamin’s index scores on the WAIS-IV were in the
borderline range, the commissioner expressly quoted
from Abildgaard’s discussion of the one score that fell
below the borderline range, the PSI. With respect to
that score, Abildgaard had explained that ‘‘[d]ifficulties
in scanning large amount of visual stimuli and visual
motor coordination may have impacted . . . [the PSI]
results.’’ This is akin to the evidence considered by the
court in Christopher R. See Christopher R. v. Commis-
sioner of Mental Retardation, supra, 277 Conn. 612(discussing conclusions of psychologist who adminis-
tered test regarding factors that had affected plain-
tiff’s score).
Fourth, the plaintiffs argue in passing that the com-
missioner improperly treated as significant Abildgaard’s
reference to a 2013 psychoeducational evaluation. They
point to the commissioner’s finding: ‘‘Significantly, in
the assessment, Dr. Abildgaard advised: ‘For a more
complete developmental history, the reader is encour-
aged to reference the psychoeducational evaluation
conducted by Dr. Erik Mayville in 2013.’ ’’ The plaintiffs
argue that Abildgaard’s statement ‘‘merely recognizes
that the Mayville assessment from 2013, already summa-
rizes Benjamin’s lengthy ‘developmental history,’ and
there is no need for Abildgaard to repeat it in [his
report].’’ Thus, they argue that ‘‘it is difficult to under-
stand why this rather ordinary statement is ‘signifi-
cant.’ ’’ We fail to see how the commissioner’s identifica-
tion of this statement as significant is improper. To the
extent that the plaintiffs are challenging the commis-
sioner’s judgment on the weight of that evidence, we
are unable to substitute our own judgment for that of
the commissioner on the weight of the evidence. See
Costello v. Commissioner of Developmental Services,
supra, 128 Conn. App. 290.
Accordingly, we conclude that the commissioner’s
decision was reasonably supported by substantial evi-
dence in the record taken as a whole.
The judgment is affirmed.
In this opinion the other judges concurred.
* The defendants filed with the Superior Court a motion to seal portions of
the administrative record containing confidential information. The Superior
Court granted the motion.
1
Pursuant to General Statutes § 1-1g (a), ‘‘ ‘intellectual disability’ means
a significant limitation in intellectual functioning existing concurrently with
deficits in adaptive behavior that originated during the developmental period
before eighteen years of age.’’
2
In 2015, the legislature amended § 1-1g (a) to replace the term ‘‘mental
retardation’’ with ‘‘intellectual disability,’’ among other amendments that
are not relevant to this appeal. See Public Acts 2015, No. 15-54, § 1.
3
The plaintiffs additionally argue that the statutory phrase, ‘‘tests of gen-
eral intellectual functioning,’’ refers to the full-scale intelligence test results,
as opposed to the subtest scores, which measure particular aspects of the
applicant’s IQ, such as verbal comprehension, perceptual reasoning, working
memory, and processing speed. On the basis of the plaintiffs’ proposed
construction of the statute, they maintain that the commissioner is not
permitted to evaluate subtest scores separately when the applicant has
presented a full-scale score below seventy. We disagree with the plaintiffs’
construction of the statute. Rather, we find persuasive the defendants’
response that the term ‘‘general’’ refers to the type of tests administered,
specifically, those that measure general intellectual functioning. The inclu-
sion of the word ‘‘general’’ in the statute does not prohibit the use of the
subtest scores.
4
The plaintiffs assert, in passing, two additional arguments. First, they
assert in the alternative that, even if this court determines that the use of
the plural term ‘‘tests’’ is significant, we should conclude that such term is
used to indicate only that there are several different types of intelligence
tests that can be used to measure ‘‘intellectual functioning.’’ We disagree with
the plaintiffs’ interpretation, which, as the defendants emphasize, ‘‘presumes
that only one test would ever be administered to an individual or presented to
[the department] in support of an application for services.’’ As the defendants
state, there is nothing in the statute, as amended, that limits the number of
tests that can be administered to an applicant and, indeed, the plaintiffs
submitted the results of multiple tests, which were administered over a
period of years, in support of their application. See Christopher R. v. Com-
missioner of Mental Retardation, supra, 277 Conn. 609 n.15 (noting that
‘‘it is not uncommon for persons seeking the department’s services to have
taken several intelligence tests’’).
Second, the plaintiffs point to the Superior Court’s citation to § 1-1a,
which addresses statutory interpretation of terms relating to security in
personal property, and argue that it ‘‘has nothing to do with this case.’’ The
Superior Court stated: ‘‘According to the [department], § 1-1a requires the
court to give a common meaning to the amended statute.’’ It is clear that
the Superior Court’s reference to § 1-1a is a scrivener’s error and the court
intended to cite to General Statutes § 1-1 (a), which provides in relevant
part that ‘‘words and phrases shall be construed according to the commonly
approved usage of the language . . . .’’
5
In part V of this opinion, we examine the plaintiffs’ related claim regarding
whether the commissioner’s decision to examine separately the subtest
scores was supported by evidence in the record.
6
The cases cited by the plaintiffs are distinguishable. See Berka v. Middle-
town, 181 Conn. App. 159, 162 and n.3, 185 A.3d 596 (Appellate Court took
judicial notice of summons in Superior Court in action underlying appeal
in resolving appeal from Superior Court’s granting of motion to dismiss
where service was not made on department), cert. denied, 328 Conn. 939,
184 A.3d 268 (2018), cert. denied, U.S. , 140 S. Ct. 479, 205 L. Ed. 2d
268 (2019); Pierce v. Lantz, 113 Conn. App. 98, 103 and n.1, 965 A.2d 576(taking judicial notice of state regulations), cert. denied, 293 Conn. 915, 979
A.2d 490 (2009); Lucarelli v. Freedom of Information Commission, 29 Conn.
App. 547, 550 and n.4, 616 A.2d 816 (1992) (taking judicial notice of other
administrative appeals and civil action filed by same plaintiff in concluding
that plaintiff’s claim was moot), cert. denied, 225 Conn. 901, 621 A.2d 284(1993).
7
‘‘Typically, judicial estoppel will apply if: [1] a party’s later position is
clearly inconsistent with its earlier position; [2] the party’s former position
has been adopted in some way by the court in the earlier proceeding; and
[3] the party asserting the two positions would derive an unfair advantage
against the party seeking estoppel. . . . We further limit judicial estoppel
to situations where the risk of inconsistent results with its impact on judicial
integrity is certain. . . . Thus, courts generally will not apply the doctrine
if the first statement or omission was the result of a good faith mistake
. . . or an unintentional error.’’ (Citation omitted; internal quotation marks
omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 170, 2 A.3d 873 (2010).
8
At the hearing before the hearing officer, Murphy testified with respect
to Zuckerman’s analysis that ‘‘Dr. Zuckerman felt that because of the extreme
variability between the verbal index score, the verbal IQ score of 65 and
the performance IQ score, he shouldn’t rely on the full-scale IQ score. Instead
he should calculate an alternate overall measure of intelligence, which is
called a [GAI], and the [GAI] came out in the borderline range. It was the
same as the full-scale IQ score.’’