Opinion
NNHCV155035480S NNHCV155035132S
03-23-2016
Jennifer Berry v. Skyview Center [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Steven D. Ecker, J.
These are consolidated appeals brought by Jennifer Berry from two probate decrees issued by the Court of Probate in the Wallingford Probate District (Philip A. Wright, Jr., Judge) after on-the-record hearings held before Judge Wright on December 2, 2014 and March 12, 2015. Both decrees relate to a petition filed by Skyview Center for the involuntary appointment of a conservator of Berry's estate. Skyview Center is a nursing home in Wallingford where Berry has resided continuously for almost two years. The impetus for the petition is clear. As a result of her age and medical condition, Berry cannot care for herself; she has been a resident in the skilled nursing facility at Skyview Center since May 28, 2014. Unfortunately, Berry is financially unable to pay for her care. She has no assets, no means of supporting herself, and no family to assist her, so it appears likely that Berry would be homeless or hospitalized if she is required to leave Skyview.
Under these circumstances, one would think that Berry would do everything within her power to facilitate Skyview's efforts to obtain third-party financial assistance for her, in the form of Title XIX benefits, so that she can remain at the facility. Not so. To the contrary, the record indicates that Berry steadfastly, actively, and even indignantly refuses to cooperate with any effort by anyone to secure third-party payment for her care. She will not identify potential sources of payment and will not sign the application for the Title XIX benefits to which she is entitled. Berry's intransigence in this regard brings us to the present litigation.
Rather than taking steps to evict Berry and replace her with a paying resident, Skyview chose to petition the Probate Court for the appointment of a conservator of Berry's estate so that an application for Title XIX benefits could be made on her behalf. On December 2, 2014, Probate Judge Wright appointed a conservator, over Berry's objection. Title XIX payments ultimately were obtained on her behalf, and Berry remains at Skyview as a result. She evidently does not object to being housed, fed, and cared for at Skyview. However, she continues to object to the fact that Skyview should be paid for its services; at least, she objects to its receipt of Title XIX benefits that were obtained through the conservatorship procedure on her behalf.
The following four issues are presented in Berry's consolidated appeals:
1. Whether the Probate Court erred by appointing a conservator of Berry's person as well as a conservator of her estate, when there was no application pending for appointment of a conservator of the person? [December 2, 2014 decree.]
2. Whether the procedures followed at the hearing on the petition to appoint a conservator of Berry's estate complied with General Statutes § 45a-650(c), which requires that medical evidence be introduced regarding the respondent's condition and ability to manage her affairs? [December 2, 2014 decree.]
3. Whether it was clearly erroneous for the Probate Court to find that Berry was not able to care for herself or mange her affairs without the appointment of a conservator of her estate? [December 2, 2014 decree.]
4. Whether the Probate Court erred by denying Berry's request for appointment of a new attorney? [March 12, 2015 decree.]
The conservator of Berry's person was permitted to resign before any action was ever taken by the conservator in that role. See Decree dated February 15, 2015. No replacement has been recommended, requested or made.
Each of the four issues will be discussed below. Additional facts will be provided as necessary. For reasons that will become clear, the court sustains the appeal as to the Issue 1, and dismisses the appeal as to Issues 2, 3 and 4.
Issue 1: Conservatorship Of the Person
After hearing evidence and argument on December 2, 2014, the Probate Court appointed involuntary representation with respect to both the estate and the person of Jennifer Berry. On appeal, Berry contends that the appointment of a conservator of her person must be vacated because she was given notice only of the hearing with respect to conservatorship of her estate; no petition had been filed seeking appointment of a conservator of her person, and Berry had never received notice that the this particular issue would be under consideration at the hearing. She argues that the decree appointing a conservator of her person was issued in violation of her constitutional due process rights and her statutory rights under General Statutes § 45a-649, and asks this court to vacate that appointment ab initio .
Skyview contends that this issue is moot, because the conservator of Berry's person was allowed to resign, with no successor, approximately two months after being appointed. Skyview points out, moreover, that the representative took no action in that capacity during her brief tenure as conservator of Berry's person. It argues that no remedial action is needed, or even possible--the court cannot order any practical relief at this point because there is no longer any conservator of Berry's person. See, e.g., Wright v. Leonardi, 149 Conn.App. 831, 837, 89 A.3d 354 (2014); Vredenburgh v. Norwalk Probate Court, 118 Conn.App. 436, 440, 984 A.2d 773 (2009).
Berry, citing In re Stanley's Appeal, 80 Conn.App. 264, 267, 834 A.2d 773 (2003), contends that the issue is not moot based on the holding in that case. She claims that the involuntary appointment of a conservator of the person entails potential collateral consequences which do not disappear merely because the conservator resigns or the conservatorship terminates. This court agrees. Berry was marked with a stigmatizing juridical status when a conservator of her person was appointed on December 2, 2014. That appointment was predicated on a judicial determination that Berry was, among other things, not competent to care for herself in certain respects. Such a determination, once made, casts a long shadow, regardless of the later resignation or removal of the conservator or termination of the conservatorship, because it might cause people to question the fitness or competence of a person once tainted by such a finding. Berry has a right to have this mark removed if it should not have been imposed in the first place. For this and related reasons, the " collateral consequences" doctrine saves this case from mootness. See, e.g., Putman v. Kennedy, 279 Conn. 162, 169-71, 900 A.2d 1256 (2006) (discussing doctrine and citing examples); Sherman v. Kowalyshyn, No. CV106012430S, 2011 WL 3671972 at *5 (Peck, J. July 22, 2011) (applying doctrine in probate appeal from guardianship appointment).
This point is implicit in the Appellate Court's decision in In re Stanley's Appeal, an appeal from a probate decree appointing conservators of the estate and person of Ann Stanley. By the time the appeal was heard, the conservatorships had been terminated, based on the Probate Court's finding that Stanley was no longer in need of a conservator. 80 Conn.App. at 266. In addition, Stanley had died while the appeal was pending. Despite these intervening events, the Appellate Court found that the case presented a justiciable controversy. The Court observed that the appeal--like the appeal in the present case--did not seek " merely to terminate the conservatorship [which had already been terminated], but also to have the appointment itself set aside." Id. at 267. Though not elaborated, this point can only mean that a justiciable controversy remained, regardless of the then-present status of the conservatorship appointment, due to the as-yet unremedied stigma attaching to the original appointment. (The Appellate Court also noted, as an independent basis for exercising jurisdiction, that a fee dispute regarding the conservators remained unresolved. Id. at 268.)
As noted above, the problem with the Probate Court's appointment in this respect is that no petition had been filed seeking appointment of a conservator of Berry's person--the sole petitioner, Skyview, sought only a conservator of her estate. Indeed, the Probate Judge expressly noted this deficiency in his decree, but evidently was sufficiently concerned about Berry's welfare that he appointed a conservator of her person nonetheless, based on a finding that Berry's mental, emotional or physical condition caused her to be unable to care for herself in various critical respects. The Probate Judge no doubt was influenced by testimony at the hearing indicating that Berry was unable to make medical decisions for herself or make arrangements for a place to live upon discharge from Skyview. In the absence of the required pre-hearing notice, however, the decree appointing a conservator of Berry's person, though obviously well-intentioned, was not made in compliance with the procedural requirements of General Statutes § 45a-649. This particular aspect of the decree must be vacated.
Issues 2 and 3: Compliance With General Statutes § 45a-650(c), and the Evidence Supporting Appointment of a Conservator of the Estate
Issues 2 and 3 relate to the sufficiency of the medical evidence supporting appointment of a conservator of Berry's estate. As a legal matter, Berry contends that the medical evidence submitted at the hearing was insufficient as a matter of law under § 45a-650(c), because there was no medical evidence from a physician demonstrating the need for a conservatorship. As a factual matter, Berry argues that the Probate Court's findings regarding impairment, in connection with the conservatorship appointment, were clearly erroneous. Neither claim has merit.
Section 45a-650 sets forth various procedural requirements which govern any hearing on an application for appointment for involuntary representation. Subsection (c)(1) requires the court to " receive evidence regarding the respondent's condition, the capacity of the respondent to care for himself or herself or to manage his or her affairs, and the ability of the respondent to meet his or her needs without the appointment of a conservator." It also imposes a requirement that medical evidence " shall be introduced" in connection with such an application. Except as otherwise provided in the statute, this medical evidence must come from a licensed physician who has examined the individual subject to the application within the past forty-five days. The medical evidence " shall contain specific information regarding the respondent's condition and the effect of the respondent's condition on the respondent's ability to care for himself or herself or to manage his or her affairs." Id. In addition, subsection (c)(1) also permits the court to take into account other available evidence relevant to the conservatorship decision. Id. Further subsections of the statute set forth the standard of proof applicable to the conservatorship determination, § 45a-650(f), the factors to be considered in arriving at that determination, § 45a-650(g), and various additional requirements.
The requirement of medical evidence may be waived by the court based on special circumstances not present here. See § 45a-650(c)(2).
Berry argues that the medical evidence presented at her hearing was insufficient, as a matter of law, to permit the appointment of a conservatorship under § 45a-650(c)(1). Her primary contention is that the statutory requirement of " medical evidence" has not been met because the physician submitting the medical evidence, Richard Kull, M.D., did not check the box on the evaluation form asking whether the respondent's capacity to make decisions was impaired. Berry is correct that neither the " yes" nor the " no" box on the form is checked in response to that question. But Berry's narrow focus on the absent check mark misses the obvious meaning and significance of the larger story told by Dr. Kull's entire report. Dr. Kull's narrative report, which is handwritten on the evaluation form and responds directly to the questions in that form, supplies the information that Berry says is missing. Dr. Kull's narrative plainly expresses his view that Berry suffers from a " cognitive disorder; " that she demonstrates a " consistent, persistent and illogical approach to making financial decisions; " that her decisions are not only irrational, but also " dangerous to her own safety; " that she " cannot logically understand or deal with the set of options open to her; " that her " illogical thinking on th[e issues of medical care and living arrangements] is very severe; " and that her inability to make logical choices places her safety at risk because " she is facing eviction and has no place to go that is safe or humane." At two points, Dr. Kull's report opines that Berry requires what he refers to as a " temporary" conservatorship so that rational and necessary financial measures can be taken to ensure her well-being. The information contained in the medical evaluation, taken as a whole, satisfies the statutory requirements.
Kull is a medical doctor, not a lawyer, and his imprecise or inaccurate reference to the position of " temporary conservator" is both excusable and beside the point. For all practical purposes, in fact, the conservatorship at issue is " temporary" in nature, because the financial issues requiring a conservator's involvement appear to be extremely limited, and the need for a conservator of the estate is expected to terminate upon completion of the pending appeal regarding one component of the Title XIX determination.
It also is clear from the hearing transcript that the Probate Judge was fully aware of the missing check mark on the physician's evaluation. Judge Wright took his role seriously, and carefully reviewed the medical evidence; he asked pointed and specific questions regarding the medical evaluation in particular, and obviously was satisfied with the medical information upon full consideration. Moreover--in accordance with the express terms of the governing statute, which expressly authorizes the probate court to consider " such other evidence [in addition to the " medical evidence" ] as may be available and relevant, " § 45a-650(c)(1)--the Probate Judge heard additional testimony and considered additional information regarding Berry's condition, level of functioning, and the support available to her, all of which presumably entered into his ultimate decision. For example, Skyview's administrator, John Turner, provided his first-hand impressions of Berry's condition and limitations based on three face-to-face meetings with her. Berry's social worker, Pam Capiello, who has thirty-two years of professional experience, also testified about her interactions with Berry and her fears regarding Berry's safety. To summarize, this court finds that the Probate Judge's decision complied in all respects with the requirements of § 45a-650(c).
Berry's court-appointed attorney at the time, Tony Karajanis, also voiced concerns regarding his client's cognitive and decision making abilities. Attorney Karajanis had spoken with Berry at length prior to the hearing. He did his best to discharge his duty of loyalty to his client while at the same time honoring his duty of candor to the tribunal. On appeal, Berry's evidentiary claims regarding her lawyer's statements at the hearing are incorrect. See C. Tait & E. Prescott, Handbook of Connecticut Evidence 547-48 (5th ed. 2014).
For much the same reasons, this court is of the opinion that the findings of fact underlying the Probate Court's conservatorship decision were not clearly erroneous. See General Statutes § 45a-186b(5) (clearly erroneous standard applies to factual findings in on-the-record proceeding); DeNunzio v. DeNunzio, 151 Conn.App. 403, 406-07, 95 A.3d 557 (2014) (same). The findings relating to the appointment are fully supported by the factual record.
Issue 4: The Failure to Grant Berry's Request for New Counsel
The conservator, appointed on December 2, 2014, promptly took steps to qualify Berry for the Title XIX benefits needed to pay for her ongoing care. Berry evidently owned a single asset, an Individual Retirement Account (IRA) valued at $3, 487.18, which had to be liquidated and " spent down" to meet Title XIX eligibility requirements. On February 20, 2015, the conservator petitioned the Probate Court for permission to liquidate the IRA. A hearing was noticed for March 12, 2015. On March 5, 2015, the Probate Court received a handwritten letter from Berry objecting to the liquidation of the IRA and requesting that the Court remove her court-appointed lawyer and appoint new counsel to represent her interests. Her letter also requested a continuance of the hearing scheduled for March 12, 2015.
The hearing was originally scheduled for March 10, 2015, to be held at the Wallingford Probate Court. Berry's attorney requested that the matter be heard at Skyview, so that Berry could attend. The hearing was rescheduled for March 12, 2015, and was held at Skyview.
The hearing went forward as scheduled. Berry was present, as was her court-appointed lawyer, Attorney Karajanis, who was the subject of her removal request. Also present were Renee S. Fahey Gentile, RN, the conservator of the estate; Skyview's lawyer and its business manager; and Attorney Wendy Mongillo, who had been appointed as Berry's guardian ad litem. The conservator and GAL testified. Berry spoke at length. The Probate Judge exhibited civility, compassion, and patience throughout the proceedings. At the end of the hearing, the Probate Judge granted the petition to liquidate the IRA. He also addressed, and denied, the request to remove Attorney Karajanis.
The Probate Judge made these rulings on the record on March 12, 2015. The Court thereafter issued two written orders, dated that same day. The substantive relief provided in these orders is consistent with the oral rulings made on the record. Thus, one order denied Berry's request for a continuance, and also denied Berry's request to terminate the appointment of Attorney Karajanis and appoint new counsel; the other order granted the conservator's petition to liquidate the IRA. Inexplicably, however, the first of these orders also states that it was " agreed that the hearing on liquidation of the IRA go forward as scheduled and that Tony Karajanis continue to serve as Jennifer Berry's Court-appointed attorney." It is clear from the record that Berry did not agree to continued representation by Attorney Karajanis, nor does the record reflect any agreement regarding the request for continuance. This aspect of the order, although evidently mistaken, has no bearing on the ultimate disposition of Issue 4 on appeal.
With respect to the foregoing events (i.e., the events in 2015, following the appointment of the conservator), the only issue raised on appeal is whether the Probate Court erred by denying Berry's request to remove Attorney Karajanis and appoint new counsel. In particular, no challenge has been raised on appeal regarding the order, entered that same day, approving the conservator's request to liquidate the IRA. The appeal as to Issue 4 is moot. Attorney Karajanis cannot be removed because he has long since been replaced by new counsel. No practical relief can be granted at this time in connection with the issue under consideration.
Berry contends that by denying her request for appointment of new counsel, the Probate Court violated the express guarantee of General Statute § 45a-649a, which states that a person in her circumstances " shall have the right to be represented by an attorney of [the conserved person's] choosing . . ."
Conclusion
The decisions of the Court of Probate on appeal in both of the captioned cases are affirmed in all respects, except that the appeal in Docket No. NNH-CV15-5035132 is sustained solely as it relates to the appointment of a conservator of the person of Jennifer Berry, contained in the decree dated December 2, 2014. The appointment of a conservator of the person of Jennifer Berry, contained in the decree dated December 2, 2014, is hereby vacated.