In re Probate Appeal of Nguyen

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IN RE PROBATE APPEAL OF MICHAEL NGUYEN
(AC 42922)
Lavine, Alvord and Moll, Js.
Syllabus
The plaintiff appealed to the trial court from the decree of the Probate
Court ordering his involuntary commitment to a psychiatric hospital for
treatment of his psychiatric disabilities. The plaintiff had been admitted
to the hospital pursuant to a physician’s emergency certificate. Prior to
the expiration of the certificate, the plaintiff signed a voluntary applica-
tion to be admitted to the hospital as a patient, but, a few hours later,
he gave the hospital three business days’ notice in writing of his desire
to leave. Four days later, the plaintiff’s primary clinician filed on behalf of
the hospital a petition in the Probate Court for the plaintiff’s involuntary
commitment to the hospital. That same day, the Probate Court, pursuant
to the statute (§ 17a-498) that governs commitment hearings, appointed
two psychiatrists to examine the plaintiff and to report their findings
to the court on a physician’s certificate form. Following a hearing, at
which a treating psychiatrist at the hospital and the appointed psychia-
trists testified, the Probate Court issued a decree in which it found by
clear and convincing evidence that the plaintiff had psychiatric disabili-
ties and was gravely disabled and that a less restrictive placement was
not available and ordered the plaintiff’s commitment to the hospital for
treatment. The plaintiff appealed from the decree to the trial court,
which affirmed the Probate Court’s decision, and the plaintiff appealed
to this court. Held:
1. The plaintiff could not prevail on his claim that the Probate Court exceeded
its statutory authority by involuntarily committing him because the hos-
pital failed to comply with the notice requirements set forth in § 17a-
498 (e); although the hospital staff failed to comply with certain notice
requirements of that statute, that failure did not nullify the statutory
authority of the Probate Court to hold an involuntary commitment hear-
ing, as the plain language of § 17a-498 does not condition the Probate
Court’s exercise of power.
2. Although the Probate Court improperly admitted into evidence a police
report that documented an anonymous complaint that the plaintiff had
told someone at his therapy group that he had homicidal fantasies, that
evidentiary impropriety constituted harmless error, as the police report
was admitted in reference to the issue of whether the plaintiff was a
danger to others and the Probate Court found that he was not.
3. The plaintiff’s claim that the Probate Court improperly admitted two
physician’s certificates into evidence because § 17a-498 (c) does not
provide that sworn certificates by psychiatrists are evidence was unavail-
ing; the plain and unambiguous meaning of § 17a-498 (c) dictates that
the Probate Court must require, and therefore consider as evidence, the
certificates of at least two physicians as a prerequisite to involuntarily
committing a person, and it does not make sense that the Probate Court
would be prohibited from considering those required certificates unless
formally admitted into evidence.
4. The plaintiff could not prevail on his claim that the Probate Court’s
findings that he was gravely disabled and that a less restrictive placement
was not available were clearly erroneous, arbitrary or capricious, charac-
terized by an abuse of discretion, or a clearly unwarranted exercise of
discretion, there having been substantial evidence in the record to sup-
port those findings; the Probate Court reasonably could have inferred
from the substantial evidence, including the plaintiff’s homicidal fanta-
sies, persecutory delusions and objections to medication, that he was
in danger of serious harm as a result of an inability to provide for his
own basic needs and that he was incapable of determining whether to
accept hospital treatment because his judgment was impaired.
Submitted on briefs April 6—officially released August 11, 2020
Procedural History
Appeal from the decree of the Probate Court for the
district of Hartford ordering the involuntary commit-
ment of the plaintiff to a psychiatric hospital, brought
to the Superior Court in the judicial district of Hartford
and tried to the court, Scholl, J.; judgment affirming the
decision of the Probate Court, from which the plaintiff
appealed to this court. Affirmed.
Peter M. Van Dyke, filed a brief for the appellant
(plaintiff).
Mitchell Lake and Rebecca M. Harris, filed a brief
for the appellees (defendant Kevin Cobb et al.).
Opinion
LAVINE, J. The plaintiff, Michael Nguyen (respon-
dent), appeals from the judgment of the Superior Court
affirming the decision of the Probate Court for the dis-
trict of Hartford ordering the involuntary commitment
of the respondent to The Institute of Living (institute)
for treatment of his psychiatric disabilities. On appeal,
the respondent claims that the Superior Court erred in
determining that his substantial rights were not preju-
diced when the Probate Court (1) lacked jurisdiction
and exceeded its statutory authority because the insti-
tute failed to comply with the notice requirements of
General Statutes § 17a-498 (e),1 (2) improperly admitted
a police report and two physician’s certificates into
evidence, and (3) entered an order that was clearly
erroneous, arbitrary or capricious, characterized by an
abuse of discretion, or a clearly unwarranted exercise
of discretion because it was based on inadmissible evi-
dence. We affirm the judgment of the Superior Court.
The record reveals the following facts and procedural
history. The respondent was admitted to the institute
on November 30, 2018, pursuant to a physician’s emer-
gency certificate (emergency certificate). On the morn-
ing of Friday, December 14, 2018, prior to the expiration
of the emergency certificate, the respondent signed a
voluntary application to be admitted as a patient in the
institute, pursuant to General Statutes § 17a-506 (a),2
whereby he agreed to abide by the rules and regulations
of the institute and to give at least three business days’
written notice if he wished to terminate his hospitaliza-
tion before his discharge was ordered. A few hours
later, the respondent completed a form, in which he
gave the institute three business days’ notice of his
desire to leave.
On Tuesday, December 18, 2018, the defendant Kevin
Cobb3 (petitioner), a licensed clinical social worker and
the respondent’s primary clinician, filed on behalf of
the institute a petition in the Probate Court for the
respondent’s involuntary commitment to the institute,
alleging that the respondent ‘‘has psychiatric disabilities
and is dangerous to himself or others or gravely disabled
in the following respects . . . . [He] presented to the
hospital upon concern over statements [that he] made
in the community and the findings of several weapons
and bomb making instructions at [his] home by [the]
local police department. [The respondent] presents
with symptoms that align with a psychotic disorder.
Continuation of suspiciousness and paranoia toward
both [institute] staff and peers remain consistent. [The
respondent] feels he [does not] need medication. Fur-
ther, [the respondent] misinterprets information as to
be threatening. His judgment and insight are impover-
ished. The treatment team feels a longer period of hospi-
talization is needed at this time to further stabilize [him]
on medication.’’
That same day, pursuant to § 17a-498 (c) (1), the
Probate Court appointed two psychiatrists, Michael
Nelken and Gregory Peterson (appointed physicians),
to examine the respondent and to report their findings
to the court on a physician’s certificate.4 Thereafter,
the respondent filed a notice, also pursuant to § 17a-498
(c) (1), that he wished to cross-examine the appointed
physicians at the scheduled commitment hearing.
The involuntary commitment hearing took place
before the Probate Court on January 2, 2019. Peter
Sugarman, a treating psychiatrist at the institute, and
the appointed physicians testified. A police report from
November 28, 2018, was admitted into evidence, which
documented an anonymous complaint that the respon-
dent had told someone at his mediation therapy group
that he had homicidal fantasies. Following the hearing,
the Probate Court issued a decree in which it found that
the respondent was not a danger to others; however,
it found by clear and convincing evidence that he was
gravely disabled. The Probate Court also found that a
less restrictive environment was not a viable option for
the respondent because he remained under an order
for involuntary medication and he was neither partici-
pating in his treatment plans nor was he communicating
his intent to comply with the treatment plan upon dis-
charge. Accordingly, the Probate Court ordered that
the respondent be committed to the institute for the
treatment of his psychiatric disabilities. The respondent
appealed to the Superior Court from the January 4,
2019 decree of the Probate Court pursuant to General
Statutes § 45a-186 et seq.5 In that appeal, the respondent
raised claims identical to those presently before this
court. The Superior Court agreed with the respondent’s
claim that the admission of the police report as evidence
in the Probate Court proceeding was improper but con-
cluded that it constituted harmless error. The court
rejected the respondent’s other claims and affirmed the
decision of the Probate Court. This appeal followed.
We begin with the standard of review applicable to
probate appeals, which is set forth in General Statutes
§ 45a-186b. Section 45a-186b provides in relevant part:
‘‘[T]he Superior Court shall not substitute its judgment
for that of the Probate Court as to the weight of the
evidence on questions of fact. The Superior Court shall
affirm the decision of the Probate Court unless the
Superior Court finds that substantial rights of the per-
son appealing have been prejudiced because the find-
ings, inferences, conclusions or decisions are: (1) In
violation of the federal or state constitution or the gen-
eral statutes, (2) in excess of the statutory authority of
the Probate Court, (3) made on unlawful procedure,
(4) affected by other error of law, (5) clearly erroneous
in view of the reliable, probative and substantial evi-
dence on the whole record, or (6) arbitrary or capricious
or characterized by abuse of discretion or clearly
unwarranted exercise of discretion. . . .’’ This stan-
dard of review also applies when an appeal from the
decision of a Probate Court is taken to our appellate
courts. See DeNunzio v. DeNunzio, 320 Conn. 178, 191,
128 A.3d 901 (2016); see also Falvey v. Zurolo, 130 Conn.
App. 243, 256–57, 22 A.3d 682 (2011).
I
The respondent first claims that the Probate Court
exceeded its statutory authority by involuntarily com-
mitting him because the institute failed to comply with
the notice requirements set forth in § 17a-498 (e). Spe-
cifically, the respondent argues that, because there is
no evidence that he was offered voluntary commitment
status pursuant to §§ 17a-498 (e) and 17a-506, the Pro-
bate Court exceeded its statutory authority, and lacked
jurisdiction, to conduct a commitment hearing. We
disagree.
In addressing this claim, we are mindful that the
‘‘Probate Court is a court of limited jurisdiction pre-
scribed by statute, and it may exercise only such powers
as are necessary to the performance of its duties. . . .
As a court of limited jurisdiction, it may act only when
the facts and circumstances exist upon which the legis-
lature has conditioned its exercise of power. . . .
Such a court is without jurisdiction to act unless it does
so under the precise circumstances and in the manner
particularly prescribed by the enabling legislation.’’
(Emphasis added; internal quotation marks omitted.)
In re Henrry P. B.-P., 327 Conn. 312, 324, 173 A.3d
928 (2017).
The statute at issue, § 17a-498 (e), sets forth certain
rights of the respondent relating to a hearing on an
involuntary commitment application, including the
opportunity to elect voluntary commitment status prior
to adjudication. Section 17a-498 (e) provides in relevant
part: ‘‘The respondent shall be given the opportunity
to elect voluntary status under section 17a-506 at any
time prior to adjudication of the application, subject to
the following provisions: (1) In the event that a patient
is in the hospital, the patient shall be informed by a
member of the hospital staff within twenty-four hours
prior to the time an application is filed with the court,
that he or she may continue in the hospital on a volun-
tary basis under the provisions of section 17a-506, and
any application for involuntary commitment by the hos-
pital shall include a statement that such voluntary status
has been offered to the respondent and refused . . . .’’
We agree with the respondent that (1) there is no
evidence indicating that a member of the institute staff
informed the respondent that he could continue in the
hospital on a voluntary basis and (2) the petition for
involuntary commitment failed to include a statement
that the respondent was offered voluntary commitment
status and that he refused. See General Statutes § 17a-
498 (e). We conclude, however, that the failure of the
institute staff to comply with the notice requirements
of § 17a-498 (e) does not nullify the statutory authority
of the Probate Court to hold an involuntary commitment
hearing because the plain language of § 17a-498 has not
‘‘conditioned [the Probate Court’s] exercise of power.’’
(Internal quotation marks omitted.) In re Henrry P.
B.-P., supra, 327 Conn. 324.6 We therefore reject the
respondent’s claim.7
II
We now turn to the respondent’s evidentiary claims.
As a preliminary matter, we note that the rules of evi-
dence apply to involuntary commitment proceedings.
See General Statutes § 17a-498 (h) (‘‘[t]he rules of evi-
dence applicable to civil matters in the Superior Court
shall apply to hearings under this section’’).
A
The respondent claims that the Probate Court
improperly admitted a police report into evidence
because the report was not authenticated and did not
satisfy the business record exception to the hearsay
rule. We agree; however, we conclude that this error
was harmless.
At the hearing, Sugarman testified that the respon-
dent was a danger to others. Sugarman’s testimony was
predicated on a police report from November 28, 2018,
which documented an anonymous complaint that the
respondent had told someone at his mediation therapy
group that he had homicidal fantasies.8 Counsel for the
petitioner proffered that police report as foundational
support for Sugarman’s conclusion that the respondent
was a danger to others. Counsel for the respondent
objected to the admission of the police report on the
grounds that, inter alia, there was no one to authenticate
the record and the record contained inadmissible hear-
say. The Probate Court admitted the police report into
evidence over the respondent’s objections.
‘‘An out-of-court statement used to prove the truth
of the matter asserted is hearsay and is generally inad-
missible unless an exception applies. . . . Police
reports are normally admissible under the business
records exception to the hearsay rule as set forth in
General Statutes § 52-180.9 . . . Witness statements
contained within the reports, however, do not fall within
this exception.10 . . . To be admissible under the busi-
ness record exception, the report must be based entirely
upon the police officer’s own observations or upon
information provided by an observer with a business
duty to transmit such information.’’ (Citations omitted;
footnotes in original; internal quotation marks omitted.)
Pirolo v. DeJesus, 97 Conn. App. 585, 588–89, 905 A.2d
1210 (2006).
Moreover, ‘‘[a]uthentication is . . . a necessary pre-
liminary to the introduction of most writings in evidence
. . . . A proponent may authenticate a document by
demonstrating proof of authorship of, or other connec-
tion with, [such] writings. . . . In general, a writing
may be authenticated by a number of methods, includ-
ing direct testimony, circumstantial evidence or proof
of custody. . . .
‘‘The requirements for authenticating business record
are identical to those for laying a foundation for its
admissibility under the hearsay exception. It is gener-
ally held that business records may be authenticated
by the testimony of one familiar with the books of the
concern, such as a custodian or supervisor, who has
not made the record or seen it made, that the offered
writing is actually part of the records of the business.’’
(Internal quotation marks omitted.) Emigrant Mort-
gage Co. v. D’Agostino, 94 Conn. App. 793, 811, 896
A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006).
The police report did not fall within the business
record exception to the hearsay rule because it was
not based entirely on the police officer’s own observa-
tions or on information provided by an observer with
a business duty to report such information. See Pirolo
v. DeJesus, supra, 97 Conn. App. 589. Specifically, the
police report contained statements made by numerous
individuals other than the reporting police officer or an
observer with a duty to report, including those of an
anonymous complainant, the respondent, and the
respondent’s father. The police report was also improp-
erly admitted because the petitioner failed to authenti-
cate the report through direct testimony, circumstantial
evidence, or proof of custody. See Emigrant Mortgage
Co. v. D’Agostino, supra, 94 Conn. App. 811–12. We
therefore conclude that the police report was improp-
erly admitted into evidence.
In any event, we are satisfied that the admission of
the police report constituted harmless error. ‘‘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.’’ (Citations omitted; inter-
nal quotation marks omitted.) DeNunzio v. DeNunzio,
supra, 320 Conn. 204.
As stated previously, counsel for the petitioner prof-
fered the police report in reference to Sugarman’s
assessment that the respondent was a danger to others.
The Probate Court ultimately concluded, however, that
‘‘based on the testimony by both the treating psychia-
trist . . . Sugarman, and the two [appointed physi-
cians], the court does not find proof that the respondent
is presently a danger to others. He has not repeated
any threats of harm and has maintained his composure
during his stay at the [institute] and during the court
hearing.’’ The Superior Court concluded on appeal that
the admission of the police report was harmless
because ‘‘[it] was admitted in reference to the issue of
whether the [respondent] was a danger to others and
the Probate Court found that he was not.’’ The respon-
dent did not address this conclusion by the Superior
Court and failed entirely to brief the harmfulness prong
of his evidentiary claim. See, e.g., State v. Durdek, 184
Conn. App. 492, 504–505, 195 A.3d 388 (to establish
reversible error, appellant must prove existence of both
erroneous ruling and resulting harm), cert. denied, 330
Conn. 934, 194 A.3d 1197 (2018). We agree with the
Superior Court that the admission of the police report
was harmless error and therefore reject the respon-
dent’s claim.
B
The respondent’s second evidentiary claim is that
the Probate Court improperly admitted two physician’s
certificates into evidence because § 17a-498 (c) does
not provide that sworn certificates by psychiatrists are
evidence. We reject his claim.11
The following additional facts and procedural history
are relevant. On December 18, 2018, pursuant to § 17a-
498 (c) (1), the Probate Court appointed Nelken and
Peterson to examine the respondent and to report their
findings on physician’s certificates. Peterson examined
the respondent and reported his findings on December
23, 2018. Nelken examined the respondent on December
20, 2018, and reported his findings on December 26,
2018. At the commitment hearing, the certificates com-
pleted by the appointed physicians were not proffered
by either party to be admitted into evidence. The hear-
ing transcript, however, reveals that the Probate Court
had the two certificates in its possession and considered
them.12 Counsel for both parties questioned the
appointed physicians regarding their respective certifi-
cates and, at times, had portions of those certificates
read into the record. Following the hearing, the Probate
Court issued a decree stating in part: ‘‘The sworn certifi-
cates of two physicians, at least one of whom is a
practicing psychiatrist, have been filed in court and
were admitted into evidence pursuant to [§] 17a-498
(c). [Counsel for] the respondent, filed a request for the
two independent psychiatrists to testify at the hearing
. . . . Both [appointed physicians] were present and
provided testimony as witnesses at the hearing.’’
(Emphasis added.) To resolve the respondent’s claim,
we must determine whether the Probate Court properly
considered the two certificates as evidence, pursuant
to § 17a-498, in reaching its decision.
Section 17a-498 (c) (1) provides in relevant part: ‘‘The
court shall require the certificates, signed under penalty
of false statement, of at least two impartial physicians
selected by the court, one of whom shall be a practicing
psychiatrist . . . . Such certificates shall indicate that
the physicians have personally examined the respon-
dent not more than ten days prior to such hearing. . . .
Each such physician shall make a report on a separate
form provided for that purpose by the Probate Court
Administrator and shall answer such questions as may
be set forth on such form as fully and completely as
reasonably possible. Such form shall include, but not be
limited to, questions relating to the specific psychiatric
disabilities alleged, whether or not the respondent is
dangerous to himself or herself or others, whether or
not such illness has resulted or will result in serious
disruption of the respondent’s mental and behavioral
functioning, whether or not hospital treatment is both
necessary and available, whether or not less restrictive
placement is recommended and available and whether
or not the respondent is incapable of understanding
the need to accept the recommended treatment on a
voluntary basis. Each such physician shall state upon
the form the reasons for his or her opinions. Such
respondent or his or her counsel shall have the right
to present evidence and cross-examine witnesses who
testify at any hearing on the application. If such respon-
dent notifies the court not less than three days before
the hearing that he or she wishes to cross-examine
the examining physicians, the court shall order such
physicians to appear.’’
‘‘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 . . . . The
test to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation.’’ (Citation omitted; internal quota-
tion marks omitted.) Small v. Going Forward, Inc., 281
Conn. 417, 421–22, 915 A.2d 298 (2007). ‘‘We will not
torture the plain wording of a statute to impart a mean-
ing not expressed by its unambiguous language.’’ Palosz
v. Greenwich, 184 Conn. App. 201, 215 n.14, 194 A.3d
885, cert. denied, 330 Conn. 930, 194 A.3d 778 (2018).
‘‘Honest disagreement about the interpretation of a stat-
utory provision does not . . . make the statute ambigu-
ous or vague.’’ (Internal quotation marks omitted.) State
v. Dudley, 332 Conn. 639, 646, 212 A.3d 1268 (2019).
We conclude that the plain and unambiguous mean-
ing of § 17a-498 (c) dictates that the Probate Court
must require, and therefore consider as evidence, the
certificates of at least two physicians as a prerequisite
to involuntarily committing the respondent. Section
17a-498 sets forth the principal components of involun-
tary civil commitment procedure. See State v. Dyous,
307 Conn. 299, 301 n.2, 53 A.3d 153 (2012). The statute
provides that the Probate Court ‘‘shall require the cer-
tificates, signed under penalty of false statement, of at
least two impartial physicians selected by the court,
one of whom shall be a practicing psychiatrist . . . .’’
(Emphasis added.) General Statutes § 17a-498 (c). It
does not make sense that the Probate Court would be
prohibited from considering those required certificates
unless formally admitted into evidence. Our construc-
tion of the statute is supported by the fact that ‘‘[s]uch
respondent or his . . . counsel shall have the right
to present evidence and cross-examine witnesses who
testify at any hearing on the application. If such respon-
dent notifies the court not less than three days before
the hearing that he or she wishes to cross-examine
the examining physicians, the court shall order such
physicians to appear.’’ (Emphasis added.) General Stat-
utes § 17a-498 (c). That is, the respondent’s ability to
challenge the statements contained in the certificates
would serve little purpose if the court were prohibited
from considering the statements therein as evidence.
Accordingly, we reject the respondent’s claim.
III
The respondent claims that the Probate Court’s find-
ings that he was gravely disabled and that a less restric-
tive placement was not available were clearly errone-
ous, arbitrary or capricious, characterized by an abuse
of discretion, or a clearly unwarranted exercise of dis-
cretion because they were based on inadmissible evi-
dence.13 We disagree.
As stated previously, on appeal, we shall affirm the
decision of the Probate Court unless the ‘‘substantial
rights of the person appealing have been prejudiced
because the findings, inferences, conclusions or deci-
sions are . . . (5) clearly erroneous in view of the reli-
able, probative and substantial evidence on the whole
record, or (6) arbitrary or capricious or characterized
by abuse of discretion or clearly unwarranted exercise
of discretion.’’ General Statutes § 45a-186b. ‘‘Given that
§ 45a-186b was also a component of the legislature’s
probate reform in 2007, there is a lack of appellate
jurisprudence regarding its application. . . . The lan-
guage of § 45a-186b, however, is virtually identical to
the language used in General Statutes § 4-183 (j) of
the Uniform Administrative Procedure Act. Given the
similarity of this statutory language, our application of
§ 4-183 (j) is instructive.
‘‘As this court has previously noted, the scope of our
review regarding an administrative appeal is restricted.
A court must determine whether there is substantial
evidence 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 [or court],
in issuing its order, acted unreasonably, arbitrarily, ille-
gally or in abuse of its discretion. . . . The substantial
evidence standard is satisfied if the record provides a
substantial basis of fact from which the fact in issue
can be reasonably inferred. . . . As an appellate court,
we do not review the evidence to determine whether
a conclusion different from the one reached could have
been reached. . . . The goal of our analysis is simply
to decide whether the trial court’s conclusion was rea-
sonable. . . . Using this standard as a backdrop, we
will give deference to the Probate Court’s determination
of the credibility of witnesses and its factual determina-
tions.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Falvey v. Zurolo, supra, 130
Conn. App. 256–57.
The following additional facts are relevant to our
resolution of the respondent’s claim. At the commit-
ment hearing, Sugarman, Peterson, and Nelken testified
as to the respondent’s condition. All three physicians
testified that the respondent is gravely disabled. All
three opined that the respondent’s psychiatric disability
resulted in serious disruption of his mental and behav-
ioral functioning and that his psychiatric disability will
result in a serious disruption of his mental and behav-
ioral functioning in the future. They further opined that
hospital treatment is necessary for the respondent, that
a less restrictive placement is not recommended, and
that the respondent is not capable of understanding the
need to accept treatment on a voluntary basis.
Sugarman diagnosed the respondent with ‘‘delusional
disorder, rule out schizophrenia.’’ He testified that the
respondent harbors unusual beliefs despite the fact that
they may not be real and that the respondent is prone
to misinterpreting, such as his delusional thoughts that
people are going to turn against and take control of
him. Sugarman further testified that the respondent is
suspicious, guarded, paranoid, and mistrustful of oth-
ers. Sugarman stated that the respondent has misinter-
preted innocent events in a dangerous way in the past
and may do so in the future unless he is properly treated.
Sugarman testified that if the respondent were released,
he would not be compliant with his medication regimen,
group therapy, or individual therapy. Moreover, the only
place that the respondent can go is to his father’s house,
which Sugarman believed was unsafe because the
father might encourage the respondent’s thinking and
does not support his treatment. Due to the respondent’s
mental state, Sugarman opined that the respondent
would not be able to behave in an appropriate manner
and to find his way in society. Sugarman further testified
that the respondent was on an involuntary medication
order. Sugarman had no doubt that the respondent
should be involuntarily committed.
Peterson diagnosed the respondent with schizophre-
nia. Peterson opined that the respondent was gravely
disabled because his perception of reality is impaired.
He further opined that the respondent remains paranoid
and delusional, with ongoing fantasies of killing others.
Peterson testified that the respondent has no insight
into the nature and seriousness of his situation.
Peterson testified that the respondent told his therapist
that he had a fantasy of wearing a mask and walking
through a school with a rifle.
Nelken diagnosed the respondent with ‘‘paranoid
schizophrenia, chronic.’’ Nelken opined that the respon-
dent was gravely disabled because he is too fearful and
agitated to manage on his own. Nelken opined that the
respondent became homicidal from persecutory delu-
sions. Nelken opined that the respondent is perma-
nently disabled and requires a structured setting to sup-
port his treatment. Nelken testified that the respondent
had an unusual self-concept and attitude toward the
world. Nelken stated that it was ‘‘evident to [him] that
this is a young man who is struggling with feelings that
he doesn’t know how to control any way except by
physical rigidity and . . . very careful speech. This
. . . is somebody who’s in grave distress.’’ Nelken testi-
fied that the respondent has homicidal fantasies, has
threatened people at gunpoint, and was struggling to
regulate his emotions. Nelken further testified that the
respondent objects to the medication he was being
given. Nelken also testified that the respondent was
unable to discuss his difficulties while he was in the
armed services: ‘‘He is unable to . . . comprehend how
it was that he was separated from the service or . . .
to make any account of his actions at that time. He’s
not able to discuss his internal processes. And I said
at the outset, he gives very unusual and bizarre evidence
of attempting to physically restrain himself as a way of
controlling his emotions and his actions.’’
Following the hearing, the Probate Court found as
follows: ‘‘The testimony provided by the three psychia-
trists does indicate that at this time the respondent is
gravely disabled. And while the [c]ourt does agree that
many individuals with the respondent’s present diag-
nosed condition are able to live in a less restrictive
environment, at this time, this does not seem to be a
viable option in the present case. The testimony [of the
physicians is consistent in] that the [respondent] was
not participating in his treatment plans or communicat-
ing his intents for discharge with the treatment plan.
He remains under an order for involuntary medication.
The [c]ourt is aware that the respondent’s father is
seeking alternative treatment programs and believes
that these should be explored as part of his discharge
plan. Therefore, the court finds by clear and convincing
evidence that the respondent has psychiatric disabilities
and is gravely disabled. The court further finds that a
less restrictive placement is not available at this time.’’
The respondent was thus involuntarily committed
pursuant to § 17a-498 (c) (3), which provides in relevant
part: ‘‘If the court finds by clear and convincing evi-
dence that the respondent has psychiatric disabilities
and is dangerous to himself . . . or others or gravely
disabled, the court shall make an order for his . . .
commitment, considering whether or not a less restric-
tive placement is available, to a hospital for psychiatric
disabilities to be named in such order, there to be con-
fined for the period of the duration of such psychiatric
disabilities or until he . . . is discharged or converted
to voluntary status pursuant to section 17a-506 in due
course of law. . . .’’ ‘‘Gravely disabled’’ is defined pur-
suant to General Statutes § 17a-495 (a) as a person who,
‘‘as a result of mental or emotional impairment, is in
danger of serious harm as a result of an inability or
failure to provide for his or her own basic human needs
such as essential food, clothing, shelter or safety and
that hospital treatment is necessary and available and
that such person is mentally incapable of determining
whether or not to accept such treatment because his
judgment is impaired by psychiatric disabilities.’’
We are not persuaded by the respondent’s claim that
the Probate Court’s findings that he was gravely dis-
abled and that a less restrictive placement was not
available were clearly erroneous, arbitrary or capri-
cious, characterized by an abuse of discretion, or a
clearly unwarranted exercise of discretion. There is
substantial evidence in the record that the respondent
was indeed gravely disabled and that a less restrictive
placement was not a viable option at that time. Specifi-
cally, the Probate Court reasonably could have inferred
from the substantial evidence, including his homicidal
fantasies, persecutory delusions, and objections to med-
ication, that the respondent was in danger of serious
harm as a result of an inability to provide for his own
basic needs and that he was incapable of determining
whether to accept hospital treatment because his judg-
ment is impaired. We therefore conclude that the Pro-
bate Court’s findings were not erroneous as the respon-
dent claims.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 17a-498 (e) provides in relevant part: ‘‘The respondent
shall be given the opportunity to elect voluntary status under section 17a-
506 at any time prior to adjudication of the application, subject to the
following provisions: (1) In the event that a patient is in the hospital, the
patient shall be informed by a member of the hospital staff within twenty-
four hours prior to the time an application is filed with the court, that he
or she may continue in the hospital on a voluntary basis under the provisions
of section 17a-506, and any application for involuntary commitment by the
hospital shall include a statement that such voluntary status has been offered
to the respondent and refused . . . .’’
2
General Statutes § 17a-506 (a) provides: ‘‘Any hospital for psychiatric
disabilities may receive for observation and treatment any person who in
writing requests to be received; but no such person shall be confined in
any such hospital for psychiatric disabilities for more than three business
days, after he or she has given notice in writing of his or her desire to leave,
unless an application for commitment has been filed in a court of competent
jurisdiction. Such person shall be informed at the time of such admission
concerning such patient’s ability to leave after three days’ notice pursuant
to this subsection and shall also be informed that an application may be
filed under subsection (e) of this section in which case such patient’s ability
to leave may be delayed in accordance with the provisions of said sub-
section.’’
3
Joanne Fogg-Waberski, the superintendent of the institute; Michael Nel-
ken, a psychiatrist; Gregory Peterson, a psychiatrist; and the respondent’s
father were also named as defendants.
4
The findings of the appointed physicians were reported to the court on a
form titled, ‘‘PHYSICIAN’S CERTIFICATE/INVOLUNTARY COMMITMENT/
ANNUAL REVIEW/PERSON WITH PSYCHIATRIC DISABILITIES’’ (physi-
cian’s certificate).
5
General Statutes § 45a-186 provides in relevant part: ‘‘(b) Any person
aggrieved by an order, denial or decree of a Probate Court may appeal
therefrom to the Superior Court. . . . (d) An appeal from a decision ren-
dered in any case after a recording of the proceedings is made under section
17a-498 . . . shall be on the record and shall not be a trial de novo. . . .’’
6
Concomitantly, the respondent argues that the Probate Court lacked
jurisdiction. We do not agree. We conclude that the institute’s failure to
offer the respondent voluntary commitment status did not deprive the Pro-
bate Court of jurisdiction over the involuntary commitment proceedings
because the notice requirement of § 17a-498 (e) is not jurisdictional, and
the respondent has not cited any legal authority to indicate otherwise.
General Statutes § 17a-497 (a) addresses the Probate Court’s jurisdiction
over involuntary commitment proceedings, and, notably, the notice require-
ment of § 17a-498 (e) is not implicated: ‘‘The jurisdiction of the commitment
of a person with psychiatric disabilities to a hospital for psychiatric disabili-
ties shall be vested in the Probate Court . . . . In any case in which the
person is hospitalized in accordance with the provisions of sections 17a-
498, 17a-502 or 17a-506, and an application for the commitment of such
person is filed in accordance with the provisions of said sections, the jurisdic-
tion shall be vested in the Probate Court for the district in which the hospital
where such person is a patient is located. . . . The Probate Court shall
exercise such jurisdiction only upon written application alleging in sub-
stance that such person has psychiatric disabilities and is dangerous to
himself or herself or others or gravely disabled.’’ (Emphasis added.)
7
Although the following facts do not affect our resolution of this claim,
we view them as worth noting. The respondent signed a voluntary application
to be admitted to the institute on December 14, 2018, which was four days
prior to the petitioner’s filing a petition for the respondent’s involuntary
commitment. That voluntary application set forth the notice requirements
of § 17a-506 (a). The record does not indicate whether, pursuant to § 17a-
498 (e), the respondent was informed, within twenty-four hours prior to the
petition for involuntary commitment being filed, that he could continue at
the institute on a voluntary basis.
8
Specifically, the police report stated that an anonymous complainant
asked the respondent about his homicidal thoughts, and he stated that ‘‘he
could see himself wearing all black, a mask, body armor and a rifle while
walking down a hallway.’’
9
‘‘The business records exception is codified in General Statutes § 52-
180, which provides in relevant part: ‘(a) Any writing or record, whether in
the form of an entry in a book or otherwise, made as a memorandum or
record of any act, transaction, occurrence or event, shall be admissible as
evidence of the act, transaction, occurrence or event, if the trial judge finds
that it was made in the regular course of any business, and that it was the
regular course of the business to make the writing or record at the time of
the act, transaction, occurrence or event or within a reasonable time there-
after. . . .’ See also Conn. Code Evid. § 8-4.’’ Pirolo v. DeJesus, 97 Conn.
App. 585, 588 n.1, 905 A.2d 1210 (2006).
10
‘‘Statements of witnesses contained within a police report add another
level of hearsay. These statements, therefore, must fall within an exception
to the hearsay rule to be properly admitted. Hutchinson v. Plante, 175 Conn.
1, 5, 392 A.2d 488 (1978) (‘[i]tems in a business entry not based on the
entrant’s personal knowledge add another level of hearsay . . . and some
exception to the hearsay rule must be found to justify admission’ . . .).’’
Pirolo v. DeJesus, 97 Conn. App. 585, 589 n.2, 905 A.2d 1210 (2006).
11
The respondent also claims that the Probate Court improperly admitted
two physician’s certificates into evidence because (1) no party moved to
admit the sworn certificates into evidence, and (2) even if the petitioner
had proffered them as evidence, they contained inadmissible hearsay. We
need not reach these claims given our determination that the Probate Court
properly considered the certificates pursuant to § 17a-498 (c) (1). See Conn.
Code of Evid. § 1-1 (b) (‘‘[t]he Code and the commentary apply to all proceed-
ings . . . except as otherwise provided by the . . . General Statutes’’).
12
Prior to hearing the testimony of the appointed physicians, the Probate
Court stated: ‘‘Dr. Nelken, we’ll be right with you. . . . And you’ve been
sworn and he stated his name for the record. . . . I believe that . . . coun-
sel for the patient, the respondent, would like to ask some questions of you
in regard to . . . [two] outside psychiatrists, um, physician’s certificates
that are required to be . . . provided to the court along with . . . an invol-
untary commitment petition.’’
13
We resolve this claim consistent with our evidentiary conclusions found
in part II of this opinion. In other words, we do not consider the content
of the police report; however, we do consider the contents of the physi-
cian’s certificates.