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SHARON DENUNZIO v. PETER DENUNZIO ET AL.

(AC 35679)

Bear, Sheldon and Lavery, Js.*

Argued April 23—officially released July 8, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Hon. David R. Tobin, judge trial

referee.)

Michael P. Kaelin, with whom was William N.

Wright, for the appellant (plaintiff).

Peter DeNunzio, self-represented, the appellee

(named defendant).
Mary T. Surette, with whom, on the brief, were Leslie

I. Jennings-Lax and Louise T. Truax, for the appellee

(defendant Douglas DeNunzio).
Opinion

SHELDON, J. The plaintiff, Sharon DeNunzio, appeals

from the judgment of the trial court affirming the decision of the Probate Court appointing the defendant

Peter DeNunzio, as conservator of the person and the

estate of the parties’ adult son, the defendant Douglas

DeNunzio.1 The plaintiff claims that the trial court

improperly determined that her substantial rights were

not prejudiced when the Probate Court admitted into

evidence (1) opinion testimony as to which parent

should be appointed to serve as conservator of Douglas,

and (2) the report of the guardian ad litem, which allegedly contained inadmissible hearsay. We affirm the

judgment of the trial court.

Although the parties share a tortuous history, only a

small fraction of that history is relevant to the resolution

of the plaintiff’s claims on appeal. Douglas has been

diagnosed with autism, schizophrenia, paranoia, and

anxiety. On December 5, 2011, shortly after Douglas

turned twenty-one years old, the defendant filed an

application with the Probate Court to be appointed

conservator of Douglas’ person. The plaintiff objected

to the defendant’s application, and filed her own application asking that she be appointed Douglas’ conservator. The court appointed Attorney Louise T. Truax as

counsel for Douglas, and Attorney Richard J. Margenot

as his guardian ad litem.

At the commencement of the proceedings on the

dueling applications for conservatorship, the parties

filed a written stipulation that the appointment of a

conservator of both Douglas’ person and his estate was

necessary. The sole issue of contention before the Probate Court was who should serve as that conservator.

Through his attorney, Douglas refused to choose

between his parents. After an evidentiary hearing that

spanned several days, the Probate Court appointed the

defendant as conservator of the person and the estate

of Douglas. In its memorandum of decision, the Probate

Court stated that it had considered the factors set forth

in General Statutes § 45a-650 (h) and found, inter alia,

‘‘that there is no doubt that both parents care [for] and

love their son deeply; they cannot agree [up]on the

proper treatment for [him] as they disagree with each

other [as to his] current diagnosis; that the [plaintiff’s]

constant second guessing of the professionals in charge

of [Douglas’] care causes inconsistent care, duress, anxiety and perseveration to [Douglas]; and that medical

professionals involved with [Douglas’] current care and

supervision have testified that it is in the best interest

of [Douglas] to have [the defendant] appointed as conservator.’’

The plaintiff thereafter appealed the decision of the

Probate Court to the trial court. In a thorough memorandum of decision, the trial court affirmed the decision
of the Probate Court. This appeal followed.

The standard of review applicable to probate appeals

is well settled. General Statutes § 45a-186b provides in

relevant part: ‘‘[T]he Superior Court shall not substitute

its judgment for that of the Court of Probate as to

the weight of the evidence on questions of fact. The

Superior Court shall affirm the decision of the Court of

Probate unless the Superior Court finds that substantial

rights of the person appealing have been prejudiced

because the findings, inferences, conclusions or decisions are . . . clearly erroneous in view of the reliable,

probative and substantial evidence on the whole record,

or . . . arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted exercise of

discretion. . . .’’

On appeal, the plaintiff claims that her substantial

rights were prejudiced when the Probate Court admitted into evidence (1) opinion testimony as to which

parent should be appointed conservator, and (2) the

report of the guardian ad litem, which contained inadmissible hearsay. In considering these claims, we are

mindful of the general principle that ‘‘[t]he rules of

evidence in civil actions adopted by the judges of the

Superior Court shall apply to all hearings [involving the

appointment of a conservator].’’ General Statutes § 45a650 (b). With that in mind, we address the plaintiff’s

claims in turn.

I

The plaintiff first claims that the Probate Court

improperly permitted Dr. Nancy O’Hara, one of Douglas’

medical providers, and Margenot, his guardian ad litem,

to testify that the defendant should be appointed as

conservator of Douglas. The plaintiff argues that the

admission of that testimony was improper because our

rules of evidence do not permit opinion testimony when

that opinion goes to the ultimate issue to be decided

by the trier of fact and the challenged testimony did

not fall within the exception to the relevantrule because

neither of those individuals is an expert on the factors

set forth in § 45a-650 (h), which govern the appointment

of a conservator, as those factors ‘‘present questions of

fact and do notrequire any special scientific ortechnical

knowledge to decide.’’ We are not persuaded.2

Article VII of the Connecticut Code of Evidence governs the admissibility of opinions and expert testimony.

Section 7-3 (a) of the Connecticut Code of Evidence

provides in relevant part: ’’Testimony in the form of an

opinion is inadmissible if it embraces an ultimate issue

to be decided by the trier of fact, except that . . . an

expert witness may give an opinion that embraces an

ultimate issue where the trier of fact needs expert assistance in deciding the issue.’’ Section 7-2 of the Connecticut Code of Evidence provides: ‘‘A witness qualified

as an expert by knowledge, skill, experience, training,
education or otherwise may testify in the form of an

opinion or otherwise concerning scientific, technical

or other specialized knowledge, if the testimony will

assist the trier of fact in understanding the evidence or

in determining a fact in issue.’’

Section 45a-650 (h) provides that, in considering

whom to appoint as conservator, ‘‘the court shall consider(1)the extentto which a proposed conservator has

knowledge of the . . . conserved person’s preferences

regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed

conservator to carry out the duties, responsibilities and

powers of a conservator, (3) the cost of the proposed

conservatorship to the estate of the . . . conserved

person, (4) the proposed conservator’s commitment to

promoting the . . . conserved person’s welfare and

independence, and (5) any existing or potential conflicts of interest of the proposed conservator.’’

Although the factors set forth in § 45a-650 (h) present

factual inquiries for the court’s consideration, the

nature of the court’s inquiry, does not, in itself, preclude

the admission of opinion testimony, or in any other way

define the permissible evidentiary parameters for said

consideration. The factors set forth are those to be

considered by the court in determining whom to appoint

as conservator. There is no requirement that the testimony or documentary evidence admitted be limited

explicitly to the specific factors to be contemplated by

the court. There surely exists a wide array of evidence

that might inform the court’s consideration of those

factors, and the evidence submitted to the court, as

noted, is regulated by our rules of evidence.3 Although

the factors may not necessitate the need for scientific

or technical knowledge, they certainly may call for specialized knowledge to assist the trier of fact in its task.4

Here, the Probate Court found ‘‘that . . . O’Hara, a

pediatrician who specializes in neurological development problems, bipolar [disorder], [Lyme disease] and

schizophrenia, and who has seen [Douglas] since his

parents’ divorce, and is available to [Douglas] by [tele]-

phone when he needs her, has testified that despite her

opinion that both parents have [Douglas’] best interest

at heart,[Douglas] is very impressionable and the [plaintiff’s] repeated requests for testing and ongoing interventions concern her, and that she is of the opinion

that the [plaintiff] is not the best person to be [Douglas’]

conservator.’’ The plaintiff challenged the Probate

Court’s consideration of that opinion in her appeal to

the trial court.

After setting forth the applicable provisions of Article

VII of the Connecticut Code of Evidence, the trial court

found that ‘‘the Probate Court acted in accordance with

[it] and did not abuse its discretion by allowing . . .

O’Hara to testify. [She is an expert] in [her field] and

[was] permitted under the Code of Evidence to offer
[her] opinion as to which of Douglas’ parents [was]

most capable of acting as his conservator.’’

In light of O’Hara’s history with this family, it cannot

be reasonably disputed that she is intimately familiar

not only with Douglas’ medical needs, but also with the

ways in which the parties have responded to those

needs over the years. On the basis of her experience

with the parties, coupled with her medical expertise,

O’Hara’s opinion constituted specialized knowledge

that informed several of the § 45a-650 (h) factors. We

thus agree with the trial court’s conclusion that O’Hara

properly was permitted to offer her opinion as to which

of Douglas’ parents was more capable of serving as

his conservator.

With respect to Margenot, as the trial court aptly

pointed out, he was called to testify as a witness by

the plaintiff, and the plaintiff asked him about conversations that he had with Douglas’ teenage sister and who

she thought should be appointed to serve as Douglas’

conservator. That was the full extent of Margenot’s

testimony at the proceedings. During oral argument on

the admissibility of his report, however, Margenot did

state that he felt that the defendant was the better

choice to serve as Douglas’ conservator. It is the admission of this statement of his opinion, in addition to

the statement of that opinion in his report, that the

plaintiff challenges.5

In addressing the plaintiff’s challenge to the admissibility of Margenot’s opinion, the trial court reasoned:

‘‘[T]he function of a guardian ad litem is to make recommendations to the court as to the best interests of the

party or parties which the guardian has been appointed

to represent. A guardian ad litem could not discharge

these duties unless the guardian was allowed to make a

decision as to what the best interests of the represented

party required and to communicate that decision to the

court. In this case, the report of the guardian ad litem

was thorough, logical and professional. The recommendations of the guardian [ad litem] were supported by

his investigation and by the evidence presented to the

Probate Court. The court finds that the Probate Court

was justified in considering the opinion of the guardian

ad litem in reaching its decision that [the defendant],

rather than [the plaintiff], should be appointed as conservator of Douglas’ person and estate.’’

We agree with the trial court’s reasoning in rejecting

the plaintiff’s claim. ‘‘We have adopted the following

list of duties of the guardian ad litem among others:

investigation of the facts necessary to get a clear picture

of the child’s situation, a determination of the child’s

best interest, frequent communication with the child

and the court, and the making of recommendations

to the court through testimony.’’ (Emphasis omitted;

internal quotation marks omitted.) Brown v. Brown,

132 Conn. App. 30, 39, 31 A.3d 55 (2011).
As the Probate Court noted, ‘‘without . . . Margenot

writing an opinion, there would be no reason to have

a guardian ad litem.’’ We agree and thus conclude that

the Probate Court properly considered the opinion of

Margenot because he was appointed specifically to

investigate the circumstances of the parties and, based

upon the specialized knowledge acquired through that

investigation, to make recommendations to the court

regarding Douglas’ best interests and who the court

should appoint as conservator in furtherance of those

interests. We note that with respect to his written

report, including his opinion, Margenot was available

for examination and cross-examination by the parties

during the hearing.

We therefore conclude that the trial court properly

held that the Probate Court’s admission of opinion testimony as to which parent should be appointed to serve as

conservator for Douglas did not prejudice the plaintiff’s

substantial rights. See General Statutes § 45a-186b.

II

The plaintiff also claims that Margenot’s report was

improperly admitted because it contained inadmissible

hearsay.6 We note at the outset that Margenot’s report

was never actually admitted into evidence. Because,

however, the Probate Court apparently did review that

report and relied on Margenot’s opinion, we will address

the plaintiff’s claim as to the propriety of its review of

that report.

The Probate Court made the following reference to

Margenot’s report in its memorandum of decision:

‘‘Margenot . . . has filed his report which states that

all parties are in agreementthat a conservatoris needed;

that the issue at hand is who should be appointed conservator; that after reviewing voluminous depositions,

medical history, exhibits introduced at the trial, interviewing family members, physicians, specialists, school

administrators, and attending depositions, it is his conclusion that the [defendant] should be appointed [Douglas’] conservator of the person and estate; that [the

defendant] should have the powers set forth in [§] 45a655 of the Connecticut General Statutes; and that the

[defendant] should have total charge in making rules

regarding [Douglas’] health care, schooling and wellbeing.’’ The Probate Court did not otherwise make any

reference to Margenot’s report or any of the materials

contained therein.

Section 7-4 (b) of the Connecticut Code of Evidence

provides: ‘‘The facts in the particular case upon which

an expert bases an opinion may be those perceived by

or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of

a type customarily relied on by experts in the particular

field in forming opinions on the subject. The facts relied

on pursuant to this subsection are not substantive evi-
dence, unless otherwise admissible as such evidence.’’

The commentary to § 7-4 explains: ‘‘Subsection (b)

expressly forbids the facts upon which the expert based

his or her opinion to be admitted for their truth unless

otherwise substantively admissible under other provisions of the Code. Thus, subsection (b) does not constitute an exception to the hearsay rule or any other

exclusionary provision of the Code. However, because

subsection (a) requires disclosure of a sufficient factual

basis for the expert’s opinion, and because the crossexaminer often will want to explore the expert’s factual

basis further, subsection (b) does not preclude the trial

court, in its discretion, from admitting the underlying

facts relied on by the expert for the limited purpose of

explaining the factual basis for the expert’s opinion.

See, e.g., 2 C. McCormick, Evidence (5th Ed. 1999)

§ 324.3, p. 356.’’ Conn. Code Evid. § 7-4 (b), commentary. Indeed, this court has held that an expert witness

may rely on hearsay in reaching an opinion. See Johnson v. Sourignamath, 75 Conn. App. 403, 405 n.1, 816

A.2d 631 (2003).

As the trial court found, there is no way to ascertain

which portions of Margenot’s report the Probate Court

relied upon in determining whom to appoint as Douglas’

conservator. The trial court nevertheless reviewed the

plaintiff’s claims, but found only a few of the claims of

hearsay meritorious, and, despite those findings, determined that there was no evidence in the record indicating that the Probate Court relied upon that hearsay in

appointing the defendant to serve as conservator.

We agree with the trial court in that there is nothing

in the record that points to any specific portions of

Margenot’s report upon which the Probate Court explicitly relied. Our review of the record reveals no evidence

that the Probate Court improperly considered inadmissible hearsay as anything other than something that

Margenot considered in formulating his opinion. We

thus presume that the Probate Court did not improperly

consider inadmissible hearsay as substantive evidence

and that the plaintiff’s substantial rights were not prejudiced by the Probate Court’s consideration of

Margenot’s report.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1

In this opinion we refer to Peter DeNunzio as the defendant and to

Douglas DeNunzio by his first name.

2

It is noteworthy that the plaintiff introduced her daughter’s opinion,

through Margenot and on the basis of a conversation that he had with her

daughter, that the plaintiff should be appointed conservator of Douglas.

Thus, the plaintiff herself introduced nonexpert opinion testimony, which

was also hearsay, as to the ultimate question to be decided by the Probate Court.

3 To the extent that the plaintiff suggests that the court is confined to

the factors set forth in § 45a-650 (h) in determining whom to appoint as

conservator, and the best interests of the conservatee are not a consideration, we disagree. The statutory factors cannot be considered in a vacuum.
Consistent with the overall policy and purpose of a conservatorship, the

best interests of a conservatee must always be a consideration and a guide

in examining the statutory factors. In other words, because a conservator

is appointed to serve the best interests of the conservatee, the statutory

factors enumerated in § 45a-650 (h) must be considered with the overarching

purpose of serving those interests.

4

It cannot reasonably be the plaintiff’s contention that the challenged

witnesses must be experts on the statutory factors that the court must

consider. For instance, how can one be an expert as to a particular individual’s ability to be a conservator?

5 We note that the plaintiff’s challenge to Margenot’s opinion is not to its

substance, but is limited to its admissibility.

6 To the extent that the plaintiff claims that the opinion of Margenot, as

set forth in his report, was inadmissible, that claim is sufficiently addressed

by our reasoning in part I of this opinion.