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SHARON DENUNZIO v. PETER DENUNZIO ET AL.

(SC 19388)

Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

Argued September 11, 2015—officially released January 12, 2016

Michael P. Kaelin, with whom was William N.

Wright, for the appellant (plaintiff).

Samuel V. Schoonmaker IV, with whom, on the brief,

was Wendy Dunne DiChristina, for the appellee

(named defendant).

Louise T. Truax, with whom, on the brief, was Leslie

I. Jennings-Lax, for the appellee (defendant Douglas

DeNunzio).
Opinion

McDONALD, J. In 2007, the legislature adopted a

paradigmatic shift in its approach to conservatorship

appointments, including significant modifications to the

circumstances and manner in which they may be made.

This certified appeal requires us to consider how the

substantive and procedural amendments to the 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.1 On appeal, the plaintiff

claims that the Appellate Court improperly concluded

that her substantial rights were not prejudiced because:

(1) the Probate Court properly could use Douglas’ ‘‘best

interests’’ as a consideration in the appointment of a

conservator, in addition to the statutory factors adopted

in P.A. 07-116; see General Statutes § 45a-650 (h);2 or

as a guiding principle in applying those factors; and (2)

a guardian ad litem’s report supporting the defendant’s

appointment was properly considered by the Probate

Court for its opinion as to the ultimate issue of fact and

was not considered insofar as it contained inadmissible

hearsay. We agree with the plaintiff that, afterthe 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

underthe 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 courtin 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.

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

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

adhered to O’Hara’s instructions, should be appointed

Douglas’ conservator. O’Hara’s concerns about the

plaintiff’s conduct as it adversely effected Douglas’ state

of mind was echoed in testimony from Shahrzad Yamini,

a psychiatrist at Douglas’ school, and Joanne Boelke,

a clinical therapist and social worker at the school.

In support of the plaintiff’s application, the court

heard testimony from two psychiatrists who had examined Douglas eighteen months and three years prior to

the hearing, respectively. In addition to their observations based on those examinations, these experts

offered opinions based on information that had been

provided to them by the plaintiff. Carl Mueller testified

that Douglas had an abnormality on the surface of his

brain that could have been caused by chronic Lyme

disease, and suggested the possibility that Douglas may

be on too high a dosage of antipsychotic medication,

but conceded that Douglas should continue the medication as prescribed if the defendant accurately had represented Douglas’ condition. Robert Bransfield opined

that Lyme disease may be a contributory factorto Douglas’ symptoms and therefore recommended that a Lyme

disease specialist be added to Douglas’ treatment team

and that the team consider adding antibiotics to Douglas’ current medications.

On the last day of the evidentiary hearings, Margenot

filed a guardian ad litem report overthe plaintiff’s objection. The report indicated that Margenot had interviewed various medical and educational professionals,

Douglas’ family members, and Douglas himself, and

had reviewed various documents, including deposition

testimony. The report stated that, based on this informa-
tion and the evidence adduced during the preceding

evidentiary hearings, Margenot’s opinion was that it

was ‘‘in [Douglas’] best interests to appoint [the defendant] as [Douglas’] [c]onservator of the [p]erson and

[e]state . . . .’’ The plaintiff claimed that the report

was inadmissible because it contained hearsay and an

opinion on the ultimate issue in the case. The Probate

Court indicated that it believed that it was proper for

a guardian ad litem to offer such an opinion, but withheld a definitive ruling on the admissibility of the report

pending a review of the rules of evidence. Although

Margenot did take the stand so that the plaintiff could

question him regarding the report, it was never admitted

into evidence.

The Probate Court subsequently issued a decision

finding by clear and convincing evidence that Douglas

needed a conservator of both the person and estate and

appointed the defendant as conservator. The Probate

Court’s decision cited testimony related to Douglas’

psychological and developmental conditions and symptoms, the harmful effect that his parents’ conflict had

on him, and concerns about the plaintiff’s interference

with Douglas’ current course of medical treatment. The

decision noted the filing of Margenot’s report and the

conclusion therein that the defendant should be

appointed conservator. The Probate Court concluded

its decision by stating: ‘‘This court further finds that

there is no doubt that both parents care and love their

son deeply; that they cannot agree on the proper treatment for [Douglas] as they disagree with each other

on [Douglas’] current diagnosis; that the [plaintiff’s]

constant second-guessing of the professionals in charge

of [Douglas’] care, causes inconsistent care, duress,

anxiety and perseveration to [Douglas]; and that 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. This court therefore appoints [the

defendant] as the conservator of the person and estate

of [Douglas] to serve without bond.’’(Emphasis added.)

The decision then set forth the conservator’s powers,

followed by two statements simply noting, without elaboration, that the court had considered the factors set

forth in § 45a-650 (h) in deciding whom to appoint as

conservator.

The plaintiff appealed from the Probate Court’s decision to the trial court pursuant to General Statutes

§ 45a-186. The plaintiff claimed, inter alia, that the Probate Court had failed to apply the statutory factors for

selecting a conservator set forth in § 45a-650 (h) and

had improperly considered Margenot’s report. The trial

court rejected these claims and affirmed the Probate

Court’s decision. The trial court ultimately concluded

that there was competent and compelling evidence that

the appointment of the defendant rather than the plaintiff was in Douglas’ best interests and that the plaintiff
had not proved that her substantial rights were prejudiced.

The plaintiff appealed to the Appellate Court,reiterating her claim that consideration of Margenot’s report

was improper. In connection with that claim, the plaintiff also asserted that the Probate Court’s decision

improperly had been based on a standard that no longer

existed following the enactment of P.A. 07-116. Specifically, she contended that instead of applying the factors

prescribed in § 45a-650 (h), the court improperly had

applied the pre-2007 best interests of the conserved

person standard.

The Appellate Court affirmed the trial court’s judgment, concluding that the Probate Court’s decision had

been rendered in conformity with the conservatorship

scheme as modified by P.A. 07-116. DeNunzio v.

DeNunzio, 151 Conn. App. 403, 95 A.3d 557 (2014).

With respect to Margenot’s report, the Appellate Court

determined that, although the rules of evidence applied

and Margenot’s report had not been admitted into evidence, the Probate Court had considered the report.

Id., 412. Nonetheless, it concluded that Margenot could

give his opinion on the ultimate issue of fact—who

should be appointed as conservator—because having

been appointed specifically to investigate the circumstances of the parties, the specialized knowledge he

had gained pursuant to his investigation qualified him

to make recommendations to the court as to what

appointment would be in Douglas’ best interests.3

Id.

The Appellate Court further concluded that Margenot

properly could rely on hearsay statements in reaching

his opinion, and that there was no indication in the

record that the Probate Court had relied on any hearsay

in the report for substantive purposes in deciding to

appoint the defendant. Id., 414.

In connection with its conclusion that the Probate

Court could use the specialized knowledge acquired by

Margenot to assist it with its determination as to what

appointment would be in Douglas’ best interests, the

Appellate Court stated: ‘‘To the extent that the plaintiff

suggests that the court is confined to the factors set

forth in § 45a-650 (h) in determining whom to appoint

as conservator, and the best interests of the conservatee

are not a consideration, we disagree. The statutory 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.’’ Id., 409 n.3.

We subsequently granted the plaintiff’s petition for

certification to appeal, limited to the following issues:
(1) ‘‘Did the Appellate Court properly conclude that the

[Probate Court properly could use] the ‘best interest[s]

of the conservatee’ standard as [a consideration and a

guide in examining the statutory factors]?’’; and (2)‘‘Did

the Appellate Court properly determine that . . . the

plaintiff’s substanti[al] rights were not prejudiced by

the Probate Court’s consideration of . . . Margenot’s

report, which was not admitted into evidence?’’4

DeNunzio v. DeNunzio, 314 Conn. 926, 101 A.3d 271

(2014). We conclude that the statutory factors adopted

by the legislature in § 16 of P.A. 07-116 and codified

as § 45a-650 (h) wholly supplant any ‘‘best interests’’

consideration, but, to the extent that the Probate Court

considered that matter, the record demonstrates that

the statutory factors were considered and supported

the Probate Court’s selection of the defendant as conservator. We further conclude that, although there

appears to be clear tension between a guardian ad

litem’s report being considered for substantive purposes without being admitted into evidence and the

strict procedural changes mandated under P.A. 07-116,

we are not persuaded that any improper reliance on

Margenot’s report would have affected the outcome.

Accordingly, the plaintiff’s substantial rights were not

prejudiced.

Before turning to the merits of the plaintiff’s claim,

it is useful to set forth a brief overview of the relevant

2007 amendments to the conservatorship process, and

the legal context in which those changes were adopted.

See P.A. 07-116. Prior to 2007, this court generally

adhered to the principle that ‘‘the legal disability of an

incompetent is analogous to that of a minor.’’ Cottrell

v. Connecticut Bank & Trust Co., 175 Conn. 257, 264,

398 A.2d 307 (1978); accord Lesnewski v. Redvers, 276

Conn. 526, 537, 886 A.2d 1207 (2005), overruled by Gross

v. Rell, 304 Conn. 234, 270–71, 40 A.3d 240 (2012).5 This

court thus reasoned that ‘‘there is no difference in the

court’s duty to safeguard the interests of a minor and

the interests of a conserved person. . . . This is

reflected in the statutory scheme governing conservatorships, which requires the Probate Court to be guided

by the conserved person’s best interests in establishing

the conservatorship and selecting the conservator; General Statutes [Rev. to 2005] § 45a-650 (e); limiting the

conservator’s powers and duties; General Statutes [Rev.

to 2005] § 45a-650 (h); resolving conflicts between conservators; General Statutes [Rev. to 2005] § 45a-657;

approving a conservator’s petition to sell or mortgage

the conserved person’s real property; General Statutes

[Rev. to 2005] § 45a-164 (a); and determining whether

to remove a conservator. General Statutes [Rev. to 2005]

§§ 45a-242 (a) and 45a-199 . . . .’’6

(Citations omitted.)

Lesnewski v. Redvers, supra, 540–41.

Public Act 07-116 evidenced a fundamental shift in

policy regarding the capacity of conserved persons and

their concomitant rights. As our courts previously have
recognized, the legislature made comprehensive substantive and procedural changes to the conservatorship

scheme designed to require probate courts to respect

individuals’ preferences, impose the least restrictive

means of intervention, and provide more transparency

and accountability in the conservatorship process. See

Kortner v. Martise, 312 Conn. 1, 53–56, 91 A.3d 412

(2014) (discussing legislative history of P.A. 07-116);

Falvey v. Zurolo, 130 Conn. App. 243, 250–53, 22 A.3d

682 (2011) (same). These changes included enumerating factors that must be considered in determining

whether a conservator is necessary and, if one is necessary, who should be appointed as conservator. P.A. 07-

116, § 16 (codified as § 45a-650 [g] and [h]).

Public Act 07-116, § 16, also required the Probate

Court to follow more formal procedures, under which

the rules of evidence for civil proceedings apply and

testimony is taken under oath. Proceedings relating to

the selection of a conservator are required to be conducted on the record; General Statutes § 45a-650 (b);

eliminating the usual practice prior to 2007, under

which appeals from decisions rendered by the Probate

Court were trials de novo. General Statutes (Rev. to

2007) § 45a-186 (a); see P.A. 07-116, § 2 (amending § 45a186 [a]); Lesnewski v. Redvers, supra, 276 Conn. 543.

Because ofthe formalities required in such proceedings,

they are subject to a new standard of review, under

which ‘‘[t]he Superior Court shall affirm the decision

of the Court of Probate unless the Superior Court finds

that substantial rights of the person appealing have

been prejudiced because the findings, inferences, conclusions or decisions are: (1) In violation of the federal

or state constitution or the general statutes, (2) in

excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by

other error of law, (5) clearly erroneous in view of

the reliable, probative and substantial evidence on the

whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted

exercise of discretion.’’ General Statutes § 45a-186b; see

also Falvey v. Zurolo, supra, 130 Conn. App. 256–57

(explaining that this standard also applies to appellate courts).

I

With that background in mind, we turn to the plaintiff’s claim that the Appellate Court improperly concluded that the Probate Court could consider the ‘‘best

interests’’ of the respondent in selecting a conservator,

either as an independent consideration or an overarching guiding principle. The plaintiff contends that,

because the ‘‘best interests’’ standard was excised from

the relevant statute and replaced with five mandatory

factors to be considered, it would be inconsistent with

the statutory text and the purpose of P.A. 07-116 in

limiting the probate courts’ discretion to allow the Pro-
bate Court to use the respondent’s ‘‘best interests’’ in

selecting a conservator. The plaintiff further contends

that the decision evidences that the Probate Court made

its decision on the basis of which appointment would

be in Douglas’ best interests by reciting opinion testimony to that effect and by failing to make any findings

relating to the statutory factors. In response, the defendant contends that the decision indicates that the Probate Court’s decision was predicated on the statutory

factors, but even if the court did consider Douglas’ best

interests, P.A. 07-116 did not intend to preclude such

a consideration.7 The defendant notes that other sections of the conservatorship statutes expressly retain

the ‘‘best interests’’ standard. See, e.g., General Statutes

§§ 45a-132 (d) and 45a-657. We conclude that the

respondent’s ‘‘best interests’’ are neither a factor nor

an overarching guide in selecting a conservator. We

further conclude, however, that to the extent that the

Probate Court considered Douglas’ best interests, that

consideration was not harmful given the Probate

Court’s consideration of the statutory factors and the

clear weight of the admissible evidence supporting its

decision under those factors.8

A

The question of whether the ‘‘best interests’’ standard

is a proper consideration or guide to selecting a conservator is a matter of law, subject to plenary review and

our well established principles of statutory construction. See General Statutes § 1-2z (setting forth plain

meaning rule); Teresa T. v. Ragaglia, 272 Conn. 734,

742, 865 A.2d 428 (2005) (‘‘[w]hen a statute is not plain

and unambiguous, we also seek interpretive guidance

from the legislative history of the statute and the circumstances surrounding its enactment, the legislative

policy it was designed to implement, the statute’s relationship to existing legislation and common-law principles governing the same general subject matter’’).

As previously noted, § 16 of P.A. 07-116 amended

§ 45a-650, which prescribes the procedures a Probate

Court must follow in determining whether to appoint

a conservator on an application for involuntary representation and, if so, who should be appointed to serve

that role. Prior to the passage of P.A. 07-116, the statute

provided that ‘‘the court shall be guided by the best

interests of the respondent’’ in making both determinations. General Statutes (Rev. to 2007) § 45a-650 (e).

Indeed, even when the respondent had requested that

a particular person serve as conservator, the Probate

Court could disregard that choice if it found that the

respondent lacked ‘‘sufficient capacity to form an intelligent preference’’ or if that appointment was ‘‘not in

the best interests of the respondent.’’ General Statutes

(Rev. to 2007) § 45a-650 (e). Public Act 07-116, § 16,

deleted the intelligent preference requirement and

every reference to ‘‘best interests’’ in § 45a-650. Instead,
it directed the Probate Court to comply with the respondent’s choice unless the nominee was unwilling, unable,

or disqualified by substantial evidence. P.A. 07-116, § 16.

In the absence of an expressed choice, P.A. 07-116 prescribed as follows: ‘‘In considering who to appoint . . .

the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent’s

or conserved person’s preferences regarding the care

of his or her person or the management of his or her

affairs, (2) the ability of the proposed conservator to

carry out the duties, responsibilities and powers of a

conservator, (3) the cost of the proposed conservatorship to the estate of the respondent or conserved person, (4) the proposed conservator’s commitment to

promoting the respondent’s or conserved person’s welfare and independence, and (5) any existing or potential

conflicts of interest of the proposed conservator.’’ P.A.

07-116, § 16, codified as § 45a-650 (h).

In light of this background, we can readily dispense

with the Appellate Court’s determination that the

respondent’s best interests may be considered as a factor in conjunction with the statutory factors. Under the

doctrine of expressio unius est exclusio alterius—the

expression of one thing is the exclusion of another—

we presume that when the legislature expresses items

as part of a group or series, an item that was not

included was deliberately excluded. State v. Bell, 303

Conn. 246, 265, 33 A.3d 167 (2011). Indeed, because the

legislature affirmatively deleted every reference to best

interests in § 45a-650, we presume that the legislature

intended to remove that matter from consideration.

This presumption is reinforced by the fact that the legislature undoubtedly knows how to enumerate a nonexclusive list of factors when it wants to. See, e.g., General

Statutes § 19a-528 (‘‘the commissioner may consider all

factors that the commissioner deems relevant, including, but not limited to, the following’’); General Statutes

§ 51-219b (a) (‘‘the following factors, as well as any

other factors which may be relevant, shall be considered’’). Using best interests as a factor could thwart

the legislature’s clearintent because nothing would preclude the Probate Court from giving that factor dispositive weight after considering the statutory factors.

We similarly are not persuaded that the respondent’s

‘‘best interests’’ remain an overarching guide through

which the statutory factors should be analyzed. That

contention is at odds with the text and purposes of P.A.

07-116. The legislature readily could have retained the

language directing that the Probate Court ‘‘shall be

guided by the best interests of the respondent’’; General

Statutes (Rev. to 2007) § 45a-650 (e); in selecting a conservator and simply elaborated that the statutory factors were relevant to that assessment. Instead, the

legislature unambiguously chose to excise the phrase

‘‘shall be guided by the best interests of the respondent’’

from § 45a-650. Indeed, the fact that the legislature
retained the ‘‘best interests’’ standard in a few other

sections of the conservatorship scheme demonstrates

that it retained that standard where it intended for that

standard to apply. It is noteworthy that the provisions

in which the ‘‘best interests’’ standard was retained all

involve issues that arise after a conservator has been

appointed and been provided with those limited powers

that cannot be retained by the conservatee. See, e.g.,

General Statutes § 45a-164 (a) (sale or mortgage of real

property); General Statutes § 45a-655 (e) (distribution

of gifts from estate); General Statutes § 45a-657 (conflicts between conservators); General Statutes § 45a679 (conflicts between guardians and conservators).

The text of P.A. 07-116 therefore indicates that the legislature retained the ‘‘best interests’’ standard in the specific circumstances in which it was appropriate and

abandoned it in those for which it was not.

Although we acknowledge that faithful application

of the enumerated factors should yield a result that is in

a respondent’s best interests, as that term is commonly

understood, the legislature evidently recognized that

the ‘‘best interests’’ standard has historically been

imbued with a particular meaning in Probate Court

proceedings—one that effectively equates adults who

are respondents in conservation proceedings with

minors. Public Act 07-116 unambiguously manifests that

such a paternalistic view no longer is consistent with

a contemporary understanding of the broad range of

capacities of persons who are in need of a conservator

and the necessity of preserving the rights of such persons to the greatest extent possible. See, e.g., P.A. 07-

116, § 1 (allowing respondent or conserved person to

refuse court-ordered examination by physician, psychiatrist or psychologist); P.A. 07-116, § 16 (requiring conservators, in carrying out their duties, to employ least

restrictive means necessary to meet needs of conserved

person and reserving to conserved person all rights

and authority not expressly assigned to conservator).

Indeed, because there is no statute orrule that expressly

directs the Probate Courtto make findings on the record

in support of the enumerated factors; cf. Practice Book

§ 6-1 (requiring trial court to state basis for conclusion

as to each claim of law and factual basis therefor in

rulings that constitute final judgment for purposes of

appeal); sanctioning the Probate Court’s use of the

respondent’s best interests as a ‘‘guide’’ in considering

those factors runs the risk of the Probate Court effectively continuing to follow past practice. Doing so obviously would be at odds with the goal of P.A. 07-116 to

ensure greater accountability in the conservatorship

process. We therefore conclude that the ‘‘best interests’’

of the respondent are neither a factor nor a guide in

the selection of a conservator.

B

Having concluded that the ‘‘best interests’’ of the
respondent are no longer a proper consideration in

making such an appointment, we must determine

whether the Probate Court improperly engaged in such

a consideration, and, if so, whether the plaintiff’s substantialrights were prejudiced by any such impropriety.

Although it appears that the Probate Court considered

Douglas’ best interests, we conclude that this impropriety was not harmful because the record reflects that the

ProbateCourt ultimately, butimperfectly, predicated its

decision on the statutory factors.

We note at the outset that the Probate Court’s decision is not a model of clarity. The Probate Court unambiguously stated twice in its decision that it had

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

selecting the defendant.9 The decision does not, however, reference any of the specific statutory factors or

state factual findings that are directly connected to any

one of those factors. In what appears to be a brief

summary of the evidence preceding the decision to

appoint the defendant, much of the evidence recited is

more directly related to why the plaintiff is not qualified

or the better qualified person to be the conservator

rather than why the defendant is qualified or the better

qualified person. In the court’s statements immediately

preceding its statement appointing the defendant, the

court noted ‘‘that medical professionals involved with

[Douglas’] current care and supervision have testified

that it is the best interest[s] of [Douglas] to have the

[defendant] appointed as [c]onservator.’’

When examining an ambiguous decision, however,

‘‘we presume that the trial court applied the correct

standard . . . .’’ Singhaviroj v. Board of Education,

301 Conn. 1, 17 n.12, 17 A.3d 1013 (2011). We also ‘‘read

the record to support, rather than to undermine, the

judgment.’’ (Internal quotation marks omitted.)

Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 9, 826

A.2d 1088 (2003).

The record lends strong support to the statements

in the decision that the Probate Court considered, and

in fact relied on, the statutory factors. It is clear that

the parties litigated the case under the expectation that

the statutory factors would govern the court’s decision.

The defendant’s attorney asked various witnesses questions relating to those factors. The attorney asked

Yamini, for example, whether, in her opinion, the defendant had ‘‘any personal conflicts’’ with any of Douglas’

physicians, whether he had ‘‘the ability to carry out

the duties and responsibilities’’ of a conservator, and

whether he had knowledge of Douglas’ preferences.

Although O’Hara used the term ‘‘best interest’’ on a

few occasions during her testimony, including when

expressing her belief that both parents had Douglas’

‘‘best interest’’ at heart, none of the questions posed to

her sought to elicit an opinion in terms of Douglas’

best interests. Indeed, the plaintiff did not object to the
relevancy of those questions posed or the responses

given thereto. The plaintiff and the defendant also

focused on the statutory factors in their closing arguments. The defendant’s attorney, for example, stated

‘‘[l]et’s discuss the statutory factors Your Honor needs

to consider,’’ and then went through the factors one by

one. The plaintiff’s attorney responded, arguing why

the factors weighed in favor of appointing the plaintiff.

Given this posture, we are not persuaded that the Probate Court either ignored this evidence and argument

while stating in its decision that these factors were

considered, or decided, without notice to the parties,

that a factor other than the statutory factors would be

given conclusive weight.

We acknowledge, however, that on the last day of

the evidentiary hearings, the Probate Court stated that

it had ‘‘to determine . . . what [was] in the best interest of’’ Douglas. In light of the Probate Court’s decision

and the litigation posture of the parties, however, it

appears most likely that the Probate Court unwisely

used the phrase ‘‘best interest’’ as shorthand for the

collective effect of the statutory factors. Indeed, in its

decision, the court stated that Douglas’ current treatment providers had testified that it would be in Douglas’

best interest to have the defendant appointed as conservator. Only O’Hara, however, had made a statement to

that effect; the other providers directed their testimony

to the statutory factors. Therefore, we conclude that,

even assuming Douglas’ ‘‘best interests’’ were considered, the plaintiff has failed to demonstrate that her

substantial rights were prejudiced.

We underscore, however, that, had the record not

been so clear that this case was litigated under the

statutory factors, we would have been compelled to

request an articulation or reverse the judgment. See,

e.g., Falvey v. Zurolo, supra, 130 Conn. App. 255 (concluding that appointment of defendant as conservator

was arbitrary and constituted abuse of discretion when

Probate Court indicated that it had considered § 45a650 [h] factors in appointing defendant but ‘‘the record

[was] bereft of any evidence regarding the defendant

or his qualifications to be conservator’’). Moreover,

although we recognize that there is no rule of practice

or statute expressly requiring the ProbateCourt to make

specific findings relating to the court’s consideration

of each of the statutory factors, it clearly would be the

better practice to do so.

II

We now turn to the plaintiff’s claim that her substantial rights were prejudiced by the Probate Court’s consideration of Margenot’s report. Although Margenot’s

report was never offered or admitted as evidence, the

plaintiff claims that the Probate Court improperly relied

on it as though it had been, when the report could not

have been properly received into evidence because: (1)
it contained a conclusion on the ultimate issue insofar

as it recommended that the defendant be appointed;

and (2) it was replete with hearsay. With respect to the

first reason, the plaintiff argues that no one can be an

expert qualified to testify on the ultimate issue of who

should be appointed as a conservator because the § 45a650 (h) factors ‘‘present questions of fact [that] do not

require any special scientific or technical knowledge

to decide.’’10 Thus, according to the plaintiff, a recommendation on who should be appointed as conservator

is not necessary to assist the court, and is therefore

inadmissible under the rules of evidence. In the alternative, the plaintiff argues that, even if an expert’s recommendation could help the court, a guardian ad litem

may be an expert on the law, if also an attorney, but

is not an expert on disabled adults. With respect to

her second reason, the plaintiff claims that the hearsay

throughout the report was harmful, pointing specifically

to a statement attributed to O’Hara that the plaintiff’s

appointment as conservator would ‘‘ ‘kill’ ’’ Douglas.

The defendant responds that there is no evidence that

the Probate Court relied on the report, and, even if the

court did rely on it, the report was cumulative of other

admissible evidence and therefore harmless. We conclude that consideration of the report would have been

improper underthe circumstances. Nonetheless, we are

not persuaded that the report, to the extent that it may

have been considered, had a substantial impact on the

Probate Court’s decision.

One of the fundamental reasons that, prior to 2007,

appeals from conservatorship proceedings were subject

to trials de novo in the trial court was because Probate

Court proceedings were relatively informal. See

Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133

(1978) (noting, inter alia, that strict rules of evidence

were rarely followed). The trial court in the present

case, however, was bound to follow the rules of evidence. See Conn. Code Evid. § 1-1 (b). Following the

enactment of P.A. 07-116, in conservatorship proceedings under § 45a-650, the Probate Court is required to

adhere to the more formalized procedures to which the

trial court previously was bound. See General Statutes

§ 45a-650 (b). Thus, statements in a report by a guardian

ad litem cannot be relied on as substantive evidence

unless the report has been properly admitted into

evidence.

A guardian ad litem’s report is, by its nature, hearsay

if offered for its truth, and it typically contains hearsay

within hearsay insofar as it contains the out-of-court

statements of others. See Conn. Code Evid. § 8-1 (defining hearsay). Use of such statements for substantive

purposes (i.e., their truth) is barred unless they satisfy

an exception provided by a statute or rule. See Conn.

Code Evid. §§ 8-2 and 8-7. Such statements may be used,

however, for nonsubstantive purposes under certain

conditions. See, e.g., Conn. Code Evid. § 7-4 (b) (‘‘The
facts in the particular case upon which an expert bases

an opinion . . . need not be admissible in evidence if

of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts

relied on pursuant to this subsection are not substantive

evidence, unless otherwise admissible as such evidence.’’). An opinion on an ultimate issue of fact may

likewise be inadmissible unless certain predicates are

satisfied. See Conn. Code Evid. §§ 7-2, 7-3 and 7-4. In

addition to these evidentiary constraints, relying on

such a report for substantive purposes without requiring its author to be subject to cross-examination may

raise due process concerns. See Toms v. Toms, 98

S.W.3d 140, 144–45 (Tenn. 2003).

During the proceedings in the present case, however,

a Probate Court rule was in effect requiring a guardian

ad litem to submit a written report to the court. Probate

Court Rules (2012) § 4.3. Although that rule since has

been repealed; see Probate Court Rules § 13.6 (effective

July 1, 2013); a recent amendment to the conservatorship scheme appears to sanction or at least acknowledge the practice of guardians ad litem submitting

reports to the court. See Public Acts 2012, No. 12-25,

§ 1, codified as General Statutes § 45a-132 (a)(3)(‘‘[a]ny

appointment of a guardian ad litem under this subdivision shall terminate upon the guardian ad litem’s report

to the judge or magistrate . . . or earlier upon the

order of the judge or magistrate’’).11 Nonetheless, the

legislature has not set forth an exception to the evidentiary requirements for guardian ad litem reports. Cf.

General Statutes § 54-46a (b) (in probable cause hearings, ‘‘[t]he court shall be confined to the rules of evidence, except that written reports of expert witnesses

shall be admissible in evidence and matters involving

chain of custody shall be exempt from such rules’’). It

may be, however, that these reporting practices can be

reconciled with the mandate that the rules of evidence

apply to conservatorship proceedings.

Some courts have also drawn a distinction between

reliance on such reports for substantive purposes and

review for nonsubstantive purposes. See, e.g., Toms v.

Toms, supra, 98 S.W.3d 144 (‘‘[a]lthough a guardian ad

litem’s report is not admissible evidence, we hold that

such a report may be reviewed by a trial court’’); Joyce

S. v. Frank S., 6 Neb. App. 23, 33, 571 N.W.2d 801 (1997)

(distinguishing between reviewing report to determine

whether guardian ad litem has performed adequate

investigation and relying on it for truth of statements

therein). Indeed, the Tennessee Supreme Court noted

that holding otherwise and precluding the submission

of reports ‘‘would effectively undermine the important

role played by a guardian ad litem’’ and that a guardian

ad litem’s report ‘‘may assist the parties by: [1] alerting

the parties to the identity of potential witnesses who

may be interviewed; [2] highlighting the testimony, both

favorable and unfavorable, that may be presented at
trial; and [3] providing a third party’s view of the facts

of the case.’’ Toms v. Toms, supra, 144.

In the present case, it is not clear to this court that

the Probate Court relied on the report for substantive

purposes rather than simply acknowledged that it had

reviewed the report because it was required under then

existing court rules to accept it. We first observe that

every paragraph in the Probate Court’s decision, except

the one relating to the report, commenced with the

phrase ‘‘This court finds’’ or ‘‘This court further finds

. . . .’’ In contrast, the decision states: ‘‘Margenot,

guardian ad litem, has filed his report . . . .’’ This

appears to be a purposeful distinction. We further

observe that the court never resolved on the record the

plaintiff’s specific evidentiary objections to the report

or otherwise suggested why it had concluded that it

could rely on the report in light of the statutory requirement of compliance with the rules of evidence that had

been brought to the court’s attention. With respect to

any hearsay on which Margenot relied in reaching his

recommendations, we agree with the trial court and

the Appellate Court that there is no indication in the

record that the Probate Court relied on any such hearsay for substantive purposes. With respect to

Margenot’s opinion as to the ultimate issue of fact,

even if we assume that this opinion was substantively

considered, we are not persuaded that any such impropriety prejudiced the plaintiff’s substantial rights.

‘‘When a court commits an evidentiary impropriety,

we will reverse the trial court’s judgment only if we

conclude that the trial court’s improper ruling harmed

[a party]. . . . In a civil case, a party proves harm by

showing that the improper evidentiary ruling likely

affected the outcome ofthe proceeding.’’(Citation omitted.) Weaver v. McKnight, 313 Conn. 393, 417, 97 A.3d

920 (2014). ‘‘It is well established that if erroneously

admitted evidence is merely cumulative of other evidence presented in the case, its admission does not

constitute reversible error.’’ Swenson v. Sawoska, 215

Conn. 148, 155, 575 A.2d 206 (1990). ‘‘In determining

whether evidence is merely cumulative, we consider

the nature of the evidence and whether any other evidence was admitted that was probative of the same

issue as the evidence in controversy.’’ Duncan v. Mill

Management Co. of Greenwich, Inc., 308 Conn. 1, 23,

60 A.3d 222 (2013).

The critical dispute before the Probate Court was

which parent was committed to a course of treatment

that would promote Douglas’ welfare and independence. The defendant marshaled testimony from all of

Douglas’ current treatment providers in support of his

application. Most significantly, O’Hara, who had treated

Douglas for many years, had undertaken extensive testing and examinations of him, and who specialized in

the very conditions at issue, opined that the defendant
was pursuing the proper and effective course of treatment. The plaintiff’s own experts offered some support

forthe course of treatment undertaken by the defendant

and only supported the possibility that Douglas could

still have Lyme disease and that such a condition could

be a contributing factor in his condition. Therefore, we

cannot conclude that Margenot’s opinion, which was

consistent with the view of Douglas’ longtime treating

physician and the clear weight of the remaining evidence, likely affected the outcome.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1

In her complaint appealing from the ProbateCourt’s decision, the plaintiff

named Peter DeNunzio and Douglas DeNunzio as defendants. For convenience, we refer to Peter DeNunzio as the defendant and to Douglas DeNunzio by his first name.

2 Although § 45a-650 has been amended by the legislature since the events

underlying the present case; see, e.g., Public Acts 2014, No. 14-103, § 6; those

amendments have no bearing on the merits of this appeal. In the interest

of simplicity, we refer to the current revision of the statute.

3 The Appellate Court’s opinion principally focused on a statement made

in the Probate Court by Margenot at oral argument on the admissibility of

his report regarding his opinion as to who should serve as conservator;

DeNunzio v. DeNunzio, supra, 151 Conn. App. 410–11; but the Appellate

Court noted that the same reasoning applies to his opinion in the report.

Id., 412 n.6.

4 The first question, as certified, stated: ‘‘Did the Appellate Court properly

conclude that the trial court correctly used the ‘best interest of the conservatee’ standard as the basis for its decision?’’ DeNunzio v. DeNunzio, 314

Conn. 926, 101 A.3d 271 (2014). In accordance with established practice,

we have reframed the question to more accurately reflect the issue presented

to the Appellate Court. See State v. Ouellette, 295 Conn. 173, 184, 989 A.2d

1048 (2010).

5

In Gross v. Rell, supra, 304 Conn. 269, this court recognized that, even

under the pre-2007 scheme, the legal status of incapable adults was not

equivalent to minors for all purposes. In that case, this court concluded that

‘‘the governing standard for the representation of impaired adult clients is

not the protection of their best interests, but, to the extent possible, the

zealous advocacy of their expressed preferences. This is true even if the

Probate Court has appointed a conservator for the client.’’ Id.; see id., 264,

270–71 (citing 2005 revision to General Statutes as applicable to case before

court and overruling Lesnewski v. Redvers, supra, 276 Conn. 526, insofar

as it held that conserved person may appeal in his or her own name from

Probate Court decision only if conserved person’s attorney demonstrates

to trial court that appeal is in conserved person’s best interests).

6 Recently, in Kortner v. Martise, 312 Conn. 1, 52–53, 91 A.3d 412 (2014),

this court quoted this best interests framework from Lesnewski v. Redvers,

supra, 276 Conn. 540–41, under circumstances that did not require us to

consider whether the ‘‘best interests’’ standard continued to apply to the

selection of the conservator following the enactment of P.A. 07-116. Because

Kortner was decided well after the Probate Court’s decision in the present

case, it could not have influenced that court’s view of the proper legal

standard. Nonetheless, it may have influenced the Appellate Court’s view

of the law, which we now clarify.

7 Truax filed a brief in this court on behalf of Douglas arguing against

the position advanced by the plaintiff in this certified appeal. The plaintiff

contends that we should not consider Truax’ brief because the fact that

Douglas did not want to take a position before the Probate Court on which

one of his parents should serve as his conservator makes it unethical for

Truax to advocate for one parent over the other on appeal. Because Truax’

brief does not raise any arguments that substantively differ from the defendant’s, however, we need not consider the plaintiff’s contention.

8 We do not rely on Margenot’s report in reaching that conclusion. See

part II of this opinion.

9 The fact that one statement in the decision refers to the ‘‘conservator(s)

named above,’’ rather than the ‘‘conservator’’ raises a question as to whether
this statement was preprinted on the Probate Court form. Nonetheless, the

plaintiff has neither advanced such a contention, nor provided this court

with a copy of the Probate Court form then in effect.

10 It is unclear from the plaintiff’s argument whether she recognizes that

an expert may not only have scientific or technical knowledge, but also

may have ‘‘other specialized knowledge’’ for which he or she is qualified as

an expert by skill, experience, training, or education. See Conn. Code Evid.

§ 7-2.

11 We recognize that there is an inherent tension between the guardian

ad litem’s traditionalrole as an advocate forthe respondent’s ‘‘best interests’’

and his or her role in proceedings determining whether a conservator is

necessary and who should be appointed in light of the fact that the ‘‘best

interests’’ standard no longer is applicable to such proceedings. The 2012

amendment to the conservatorship statutes, however, limited the circumstances under which a guardian ad litem may be appointed in conservatorship proceedings and required the order making such an appointment to

specifically delineate the scope of the guardian ad litem’s mandate. See

General Statutes § 45a-132 (a) (3) (‘‘No judge or magistrate may appoint a

guardian ad litem for a conserved person in a proceeding under section

17a-543 or 17a-543a or sections 45a-644 to 45a-663, inclusive, unless [A] the

judge or magistrate makes a specific finding of a need to appoint a guardian

ad litem for a specific purpose or to answer specific questions to assist the

judge or magistrate in making a determination, or [B] the conserved person’s

attorney is unable to ascertain the preferences of the person, including

preferences previously expressed by the person. Prior to appointing a guardian ad litem for a person under subparagraph [B] of this subdivision, the

judge or magistrate may question the person to determine the person’s

preferences or inability to express such preferences. If the judge or magistrate appoints a guardian ad litem under this subdivision, the judge’s or

magistrate’s order shall [i] limit the appointment in scope and duration, and

[ii] direct the guardian ad litem to take only the specific action required or

to answer specific questions posed by the judge or magistrate . . . .’’). Thus,

the guardian ad litem’s role may be limited, particularly when the issue to

be decided is one in which the ‘‘best interests’’ standard no longer applies.