Argued September 11, 2015
Appeal from the decision of the Probate Court for the district of Greenwich appointing the named defendant conservator of the person and estate of the defendant Douglas DeNunzio, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Hon. David R. Tobin, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment affirming the decision of the Probate Court, from which the plaintiff appealed to the Appellate Court, Bear, Sheldon and Lavery, Js., which affirmed the trial court's judgment, and the plaintiff, on the granting of certification, appealed to this court.
The plaintiff appealed to the trial court from the decision of the Probate Court appointing her former husband, the defendant P, conservator of the person and estate of their adult son, D. After P filed an application in the Probate Court seeking to be appointed D's conservator, the plaintiff filed an objection to that application and filed an application seeking her own appointment. The Probate Court thereafter appointed an attorney, T, and a guardian ad litem, M, for D. Because all of the parties stipulated that a conservator should be appointed for D, the evidentiary hearing in the Probate Court focused principally on the question of who the conservator should be. Various medical and treatment providers testified at the hearing, including O, one of D's longtime medical providers, who opined that P should be appointed conservator. M also filed a report with the Probate Court in which he opined that P should be appointed conservator, but the report was not admitted into evidence. The Probate Court issued its decision finding by clear and convincing evidence that D needed a conservator of the estate and person, and appointing P as conservator. In her appeal to the trial court, the plaintiff claimed that the Probate Court had failed to apply the statutory (§ 45a-650 [h]) factors for selecting a conservator and had improperly considered M's report. The trial court affirmed the Probate Court's decision and the plaintiff appealed to the Appellate Court, claiming, inter alia, that the Probate Court's decision improperly had been based on the best interests of the conserved person standard, which no longer applied following amendment of § 45a-650 (h) and other provisions of the conservatorship scheme in 2007. The Appellate Court determined that the decision of the Probate Court had been rendered in conformity with the conservatorship scheme as modified, and that that court could consider the best interests of D as a guide in examining the factors in § 45a-650 (h). The Appellate Court further concluded that although the rules of evidence applied to the evidentiary hearing and M's report had not been admitted into evidence, M could give his opinion on the ultimate issue of fact--who should be appointed conservator--and that M could rely on hearsay statements in reaching that opinion. The Appellate Court noted that there was no indication that the Probate Court had relied on any hearsay in M's report for substantive purposes in deciding to appoint P. The Appellate Court affirmed the trial court's judgment, and, on the granting of certification, the plaintiff appealed to this court. Held :
1. The Appellate Court properly concluded that the plaintiff's substantial rights were not prejudiced by the Probate Court's appointment of P as conservator; although the factors set forth in § 45a-460 (h) supplanted any consideration by the Probate Court of the best interests of the conserved person, and such interests should not be used as a factor or a guide in selecting a conservator, to the extent that the Probate Court considered the best interests of D, that impropriety was not harmful, the record here clearly having demonstrated that the Probate Court predicated its decision on the statutory factors and the clear weight of the admissible evidence supported the Probate Court's selection of P as conservator.
2. The plaintiff could not prevail on her claim that her substantial rights were prejudiced by the Probate Court's consideration of M's report: to the extent that that court may have considered the report, this court could not conclude that M's opinion, which was consistent with the opinion of O and the clear weight of the remaining evidence, likely affected the outcome; although consideration of the report as substantive evidence would have been improper because the report had never been admitted into evidence, it was not clear that the Probate Court relied on the report for substantive purposes or relied on any hearsay in the report, but rather the Probate Court acknowledged that it had accepted the report because M was required to submit it under then existing probate court rules.
Michael P. Kaelin, with whom was William N. Wright, for the appellant (plaintiff).
Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (named defendant).
Louise T. Truax, with whom, on the brief, was Leslie I. Jennings-Lax, for the appellee (defendant Douglas DeNunzio).
Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. McDONALD, J. In this opinion the other justices concurred.
[320 Conn. 180] McDONALD, J.
In 2007, the legislature adopted a paradigmatic shift in its approach to conservatorship appointments, including significant modifications to the circumstances and manner in which they may be made. This certified appeal requires us to consider how the substantive and procedural amendments to the conservatorship scheme set forth in No. 07-116 of the 2007 Public Acts (P.A. 07-116) affected the Probate Court's selection of a conservator in this case.
The plaintiff, Sharon DeNunzio, appeals from the judgment of the Appellate Court affirming the trial court's judgment which, in turn, affirmed the Probate Court's decision to appoint the defendant, the plaintiff's former husband, Peter DeNunzio, conservator of their adult son, Douglas DeNunzio. On appeal, the plaintiff claims
that the Appellate Court improperly concluded that her substantial rights were not prejudiced because: (1) the Probate Court properly could use Douglas' " best interests" as a consideration in the appointment of a conservator, in addition to the statutory factors adopted in P.A. 07-116; see General Statutes § 45a-650 (h);  or as a guiding principle in applying those factors; and (2) [320 Conn. 181] a guardian ad litem's report supporting the defendant's appointment was properly considered by the Probate Court for its opinion as to the ultimate issue of fact and was not considered insofar as it contained inadmissible hearsay. We agree with the plaintiff that, after the enactment of P.A. 07-116, probate courts may no longer consider the amorphous " best interests" of a respondent in conservatorship proceedings. We further agree that probate courts may only consider evidence that has been properly admitted pursuant to the rules of evidence. We nevertheless conclude that, to the extent that the Probate Court may have engaged in such improper considerations, the plaintiff's substantial rights were not prejudiced in light of the clear weight of the admissible evidence supporting the defendant's appointment under the proper standard. We therefore affirm the judgment of the Appellate Court.
The record reveals the following undisputed facts and procedural history. For many years, Douglas has manifested symptoms of mental distress, including paranoia, extreme anxiety, and a tendency to perseverate, meaning to obsess over a particular topic, most notably, his health. The plaintiff and the defendant, whose marriage was dissolved in 2003 when Douglas was still a minor, have been involved in a protracted dispute over whether Douglas' symptoms were caused by chronic Lyme disease and/or psychological and/or developmental disorders. During the early stages of this dispute, the trial court in the dissolution action modified its custody orders to confer on the defendant sole decision-making authority over medical decisions concerning Douglas. The trial court in the dissolution action subsequently held the plaintiff in contempt of that order after she took Douglas to a pediatrician without the defendant's consent, finding that the plaintiff's " preoccupation with Douglas' health" was unhealthy for Douglas.
[320 Conn. 182] Douglas' numerous treating physicians have determined that his symptoms were caused by schizophrenia and an Asperger spectrum disorder. The defendant accepted these physicians' opinions and agreed with their advice to place Douglas on a regimen of antipsychotic medications, which appeared to them to stabilize Douglas' condition. With the plaintiff's consent, the defendant placed Douglas in a residential education and treatment facility (school) that holds itself out as specializing in the treatment of young males with developmental, psychological and learning disorders. The school's staff has concluded that Douglas was making good progress under this course of treatment.
Although the plaintiff agrees that Douglas is on the autism spectrum, she disagrees with the defendant with respect to the cause of that condition and Douglas' symptoms of mental distress. Specifically, the plaintiff is convinced that these conditions
have resulted from chronic Lyme disease that had persisted despite repeated courses of antibiotic treatment, negative test results, and Douglas' ability to engage in vigorous athletic activities such as skiing. She therefore advocated substantially reducing Douglas' antipsychotic medication and treating him with antibiotics.
In 2011, shortly after Douglas' twenty-first birthday, the defendant filed an application in the Probate Court seeking to be appointed as Douglas' conservator. The plaintiff filed an objection to that application, and filed an application seeking her own appointment. The Probate Court thereafter appointed an attorney and a guardian ad litem for Douglas, Louise T. Truax and Richard J. Margenot, respectively.
Because Douglas' representatives and parents all stipulated that Douglas' condition was such that he needed a conservator, the evidentiary hearing on the applications focused principally on the question of who the [320 Conn. 183] conservator should be. Truax informed the court that Douglas had refused to express a preference regarding which one of his parents should be appointed. Both the plaintiff and the defendant testified at length regarding Douglas' medical and educational history, and voiced their respective views about the underlying cause of his symptoms. The defendant also testified that he had taken Douglas to hundreds of medical appointments over the years, that he had discussed Douglas' wishes regarding his medical treatment with Douglas as recently as the previous week, and that he was willing to commit his time and financial resources to ensure that Douglas received appropriate medical care. The plaintiff testified that Douglas wanted to be taken off of his current medication and treated for Lyme disease, that she would replace Douglas' medical team if appointed, and that she believed that the defendant was not committed to following Douglas' interests or promoting his independence.
In support of his application, the defendant offered testimony from Douglas' current treatment providers. These providers contrasted their observations of the defendant's commitment to a course of treatment that had helped Douglas and Douglas' calm state when under the defendant's care with their contrary observations of the plaintiff. Nancy O'Hara, a physician who specializes in autism and neurological development issues and who had treated Douglas for many years, testified that, although Douglas previously had Lyme disease, it had been effectively treated. O'Hara testified that the plaintiff repeatedly had violated instructions not to discuss medical treatment with Douglas because it caused him severe anxiety. O'Hara also testified that she did not believe the plaintiff would adhere to her advice that Douglas should continue his antipsychotic medications. O'Hara further testified, over the plaintiff's objection, that it was her opinion that the defendant, who had [320 Conn. 184] adhered to O'Hara's instructions, should be appointed ...