Opinion
FSTCV155014341S
03-09-2016
Joseph Kron v. Appeal from Probate
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
David R. Tobin, Judge Trial Referee.
On November 20, 2014, the appellant, Joseph Kron (" Kron") filed a timely appeal (#100.30) of a decree from the Probate Court of the district of Stamford dated October 24, 2014. Following his motion to seal personally identifying information, Kron filed a substituted complaint (#103.00) on November 11, 2015. In the first count of his substituted complaint, Kron alleges that pursuant to an involuntary application for the appointment of a conservator filed by the Stamford Hospital, the Probate Court ordered the appointment of attorney Matthew A. Caputo (" Caputo"), as conservator of his estate and person against Kron's wishes. The Probate Court's finding that the appellant was incapable of managing his affairs and/or to meet his personal needs was based on hearsay allegations and unreliable evidence. As a result, Kron's substantial rights have been prejudiced because the Probate Court's actions were: 1) in violation of the federal and state constitutions or the general statutes; 2) in excess of the statutory authority of the Probate Court; 3) made on unlawful procedure; 4) affected by other errors of law; 5) clearly erroneous; 6) arbitrary or capricious or characterized by abuse of discretion.
In count two, Kron alleges that pursuant to an involuntary application for commitment filed by Stamford Hospital, the Probate Court ordered that he be committed to a Mental Health Center against his wishes. The Probate Court's findings that Kron is dangerous to himself or others, or gravely disabled, was again based on hearsay allegations and unreliable evidence, resulting in prejudice to his substantial rights.
The third count states that Stamford Hospital filed an application for an order authorizing psychiatric medication treatment for a non-consenting patient, and the Probate Court approved the application despite finding that Kron was capable of giving informed consent. By doing so, the Probate Court violated General Statutes § § 17a-543(a) and 17a-543(e)(1)(A), as well as the plaintiff's substantial rights. Attached to the substituted complaint are the Probate Court's orders that the appellant requests the court to reverse.
Because Kron has not been a patient at Stamford Hospital since 2014, the third count appears to be moot.
The record of the hearings held before the Stamford Probate Court was filed on December 8, 2015. (#104.00.) Kron filed a brief in support of his appeal on January 4, 2016. (#105.00.) An opposing brief was filed by Matthew Caputo, Kron's court appointed conservator on February 11, 2016 (#107.00), and Kron filed a reply brief on February 16, 2016 (#109.00). Oral Argument was held before the court on February 23, 2016. At the request of counsel the court allowed the parties three weeks to file post-argument briefs focused on the issue of whether Kron had waived any procedural irregularities in the Probate Court hearing by failing to make an objection on the record.
DISCUSSION
" An appeal from a Probate Court to the Superior Court is not an ordinary civil action . . . When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common-law jurisdiction, but of a Probate Court." Silverstein v. Laschever, 113 Conn.App. 404, 409, 970 A.2d 123 (2009). Prior to October 1, 2007, the majority of probate appeals were heard by the Superior Court as trials de novo. Palozie v. Palozie, 283 Conn. 538, 541 n.5, 927 A.2d 903 (2007). After the enactment of Public Act 07-116, which took effect on October 1, 2007, it is clear that probate hearings should now be conducted on the record and that " [a]ppeals from any decision rendered in any case after a recording is made of the proceedings under section 17a-498 . . . 45a-644 to 45a-667v, inclusive . . . shall be on the record and shall not be a trial de novo." General Statutes § 45a-186(a). Since the petitions/applications in this matter were brought pursuant to § § 17a-498 and 45a-650 and the Probate Court compiled a record that was furnished to this court, the present appeal must be considered on that record and not conducted as a trial de novo.
Section 17a-498(a), pertaining to commitment applications, provides: " Upon an application being filed in the Probate Court pursuant to the Probate Court's jurisdiction under section 17a-497, such court shall assign a time, not later than ten business days after the date the application was filed, and a place for hearing such application, and shall cause reasonable notice of such hearing to be given to the respondent and to such relative or relatives and friends as the court deems advisable. The notice shall inform the respondent that he or she has a right to be present at the hearing; that he or she has a right to counsel, that he or she, if indigent, has a right to have counsel appointed to represent him or her; and that he or she has a right to cross examine witnesses testifying at any hearing upon such application."
Section 45a-650, pertaining to an involuntary conservatorship, provides " At any hearing on an application for involuntary representation, before the court receives any evidence regarding the condition of the respondent or of the respondent's affairs, the court shall require clear and convincing evidence that the court has jurisdiction, that the respondent has been given notice as required in section 45a-649, and that the respondent has been advised of the right to retain an attorney pursuant to section 45a-649a and is either represented by an attorney or has waived the right to be represented by an attorney. The respondent shall have the right to attend any hearing held under this section."
General Statutes § 45a-186b provides: " In an appeal taken under section 45a-186 from a matter heard on the record in the Court of Probate, the 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: (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. If the Superior Court finds such prejudice, the Superior Court shall sustain the appeal and, if appropriate, may render a judgment that modifies the Court of Probate's order, denial or decree or remand the case to the Court of Probate for further proceedings. For the purposes of this section, a remand is a final judgment." Given this statutory language, in order for this court to sustain her appeal, Kron must demonstrate that the Probate Court prejudiced his substantial rights in one of the six ways enumerated in § 45a-186b.
THE RECORD
The record returned by the Probate Court consists of the following:
1. A petition for involuntary commitment of person with psychiatric disabilities dated October 10, 2014, filed by Stamford Hospital.
2. An appointment of two psychiatrists, Dr. Anton Chinniah and Dr. Raj Banal to examine Kron dated October 17, 2014, signed by the clerk of the Stamford Probate Court.
3. An appointment of attorney Michael Rubino, Jr. as counsel for Kron dated October 17, 2014, signed by the clerk of the Stamford Probate Court.
4. Notice of Commitment Hearing to be held on October 24, 2014, dated October 17, 2014, signed by the clerk of the Stamford Probate Court.
5. A physician's certificate dated October 19, 2014 signed by Raj K. Bansal, M.D. stating that due to " psychosis NOS" Kron is a danger to himself and others and is gravely disabled.
6. A physician's certificate dated October 18, 2014, signed by Anton N. Chinniah, M.D., stating that due to " psychosis NOS" Kron is a danger to himself and others and is gravely disabled.
7. A decree dated October 24, 2014 signed by Hon. Michael P. Murray, Acting Judge, stating that " [a]fter due hearing, the court finds that . .., by clear and convincing evidence that [Kron] has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled" and ordering that Kron be committed to Greater Bridgeport Community Health Center for the treatment of psychiatric disabilities.
8. A Physician's Emergency Certificate dated October 2, 2014 signed by Rachit Patel, M.D., stating the opinion that Kron is gravely disabled and is a danger to himself and others due to his psychiatric illness.
9. Copies of medical records from Stamford Hospital from October 2014.
10. Petition for the appointment of a conservator of the person and estate of Kron filed by Stamford Hospital October 7, 2014.
11. Order appointing attorney Michael Rubin, Jr. as attorney for Kron dated October 17, 2014 signed by the clerk of the Stamford Probate Court.
12. Notice of hearing on application for conservator to be held on October 24, 2014 dated October 17, 2014 signed by the clerk of the Stamford Probate Court.
13. Citation and state marshal's return of service dated October 18, 2014.
14. Acceptance of appointment as conservator signed by Matthew A. Caputo dated October 14, 2014.
15. Decree dated October 24, 2014, signed by Hon. Michael P. Murray, Acting Judge stating that " the court further finds that medical evidence has been presented. Clear and convincing evidence has been presented to this court that [Kron] has a mental, emotional or physical condition that results in the respondent being unable to receive and evaluate information or make or communicate decisions to such an extent that [Kron] is unable, even with appropriate assistance, to perform the functions inherent in managing his or her affairs; and has a mental, emotional or physical condition that results in the respondent being unable to receive and evaluate information or make or communicate decisions to such an extent that [Kron] is unable, even with appropriate assistance, to meet essential requirements for personal needs." The decree appoints Matthew Caputo as conservator of Kron's person and estate; states that Kron had " not appointed, designated or nominated a conservator"; and " dispenses with the requirement of a probate bond."
16. A Physician's Evaluation dated October 8, 2014, signed by Rachit Patel, M.D., stating the opinion that Kron suffers from " psychosis NOS" resulting in his being unable to make decisions regarding his property and physical function.
17-23. Material relating to the probate court's order authorizing Stamford Hospital to administer psychiatric medication to Kron without his consent.
24. A transcript of the hearing held on October 24, 2014.
THE OCTOBER 24, 2014 HEARING
The transcript of the October 24, 2014 hearing reflects that the hearing was held at Stamford Hospital by acting Probate Judge Michael Murray. Attending the hearing were: a) Dr. Gopal K. Upadhya, a psychiatrist, b) Steve Weintrub, a senior psychiatric social worker, c) Victor Estay, Connecticut Department of Social Services, d) attorney Matthew Caputo, proposed conservator, e) Kathleen Steward, nurse practitioner, f) Joanne Ettore, senior coordinator for the City of Stamford, g) Michael Rubino, the court appointed attorney for Kron, h) Catherine Brand, case manager for Stamford Hospital, and i) Daniel Ferrara, a friend of Kron's.
Soon after the introductions, Kron inquired if he was being committed, and stated that he wanted another lawyer. The court then instructed him to stop interrupting and asked who would begin the hearing on behalf of the applicant, Stamford Hospital. Dr. Upadhya stated that Kron had been diagnosed as suffering from psychosis, not otherwise specified. He described the condition at some length and reported on the treatment given to Kron at Stamford Hospital. Dr. Upadhya stated his belief that Kron could not make reasonably well-informed decisions, but stated that Kron is alert, oriented, not suicidal or homicidal, and well versed with constitutional law.
The court then asked if any other representatives of Stamford Hospital wished to add anything. In response, Joanne Ettore, although not employed by Stamford Hospital stated that Kron neglects his daily hygiene and does not shower.
The court then called upon attorney Rubino who questioned Dr. Upadhya regarding his relationship with Kron and the extent to which he had an opportunity to interact with and examine him. During the questioning of Dr. Upadhya, Kron interrupted attorney Rubino on several times, finally leading Rubino to ask Kron whether he wishes to act as his own attorney. Kron initially responded " no, " but continued to state that he did " really want another lawyer, because I lost confidence in you a little bit." Kron later reiterated that he felt Rubino neglected him as an attorney. Thereafter Rubino resumed and completed his questioning of Dr. Upadhya regarding Kron's condition and the circumstances in which he had previously been living.
The court then permitted Kron to address the court. After discussing his living arrangements, and the health concerns which led to his coming to the attention of social workers, namely that " the CO gas was too much for the flue pipe, " Kron stated that a social worker was assisting him in finding an apartment. He also stated that he had asked to be represented by attorney Steven Bureau (sic), but had limited access to communication because he was being treated like a prisoner. Kron then attempted to explain to the court the challenges he faced to make his residence in Stamford habitable in the wake of damage suffered in hurricane Sandy, but iterated that with the assistance of a social worker, he was in the process of getting new plumbing, a new electrical system, new drywall, and a new furnace.
During Kron's narrative, the court asked " Can I interrupt you for one second, please?" After an affirmative response from Kron the court questioned Victor Estay regarding a 2009 incident in which police were called to Kron's residence. Estay went on to state that while Kron was able to meet his needs at home in 2009, " based on the police report and [his] conversation with the Department of Medical Health, " it was clear that Kron needs support, psychiatric treatment and perhaps medical treatment. When Kron attempted to address Estay's statements, the court took a brief recess.
The hearing resumed apparently in Kron's absence, and Estay continued to make statements regarding Kron's mental health and living conditions. Estay stated that he understood that Kron " is able to function to a really high degree at home, " but because he is not a doctor, supports the medical petition, and cannot determine " what other medical conditions he might have developed as a result of the mold, " at Kron's residence. Estay further stated that Kron refused the psychiatric services that social services offered, and that his decline in mental health was a result of this refusal. Attorney Rubino questioned Estay briefly. In response to a question regarding Kron's finances, Estay stated that Kron had recently indicated some financial difficulty, but in 2009, he informed social services that he had $100,000 saved.
At the request of the court, Kron's friend, Daniel Ferrara, made a statement regarding Kron and opined that Kron was handling his own affairs adequately. Thereafter, attorney Rubino questioned Ferrara to provide the court with a more detailed account of Ferrara's experiences with Kron. Ferrara stated that Kron pays bills, gets groceries, cooks for himself, and was surprised to hear that he had problems with the police, as he does not perceive Kron as an aggressive individual.
After Ferrara's statement, Kron was permitted to return to the hearing. The court announced that it was proceeding to consider the application to have an involuntary conservator appointed for Kron. The court asked Dr. Upadhya to make a statement. Dr. Upadhya then stated his opinion that Kron is not able to care for himself or " make basically good decisions because of the mental illness." In response to the court's questioning, Dr. Upadhya stated that Kron told him that his house costs over $500,000, and had also mentioned to Kathleen Steward that he had money hidden away. Dr. Upadhya ultimately concluded that he could not think of any less restrictive means of meeting Kron's needs than a conservatorship.
Upon Attorney's Rubino's questioning, Dr. Upadhya expressed that his concern with regard to this money was that laborers working on the house might steal the money.
After the court finished with Dr. Upadhya, Attorney Rubino asked the court to allow Kron to speak not only in opposition to the application for conservatorship, but also in opposition to the petition for commitment. The court agreed to hear Kron with respect to both applications. Rubino then questioned Kron about the CO detector that he had installed in his home, the fact that the home was not mortgaged, and that the property taxes and utility bills were paid up to date. Kron further responded in the affirmative when asked if he was able to shop for his own groceries and prepare his own meals, and also explained why he had not been able to have his car repaired, and stated that he had spent $9,000 to have the roof of his home repaired.
Rubino then questioned Kron regarding a recent incident which resulted in the police being called to his residence. The incident involved a social worker who was trying to question Kron regarding his mental health. Kron perceived that the social worker was trespassing on his property, and apparently brandished a bat or other stick-like object to encourage the social worker to leave because he had a " no trespassing" sign, and an alleged arrangement with Dr. Patel that a social worker would not enter his property to inquire about his mental health. After the police were called, Kron was taken to Stamford Hospital where he apparently remained until the time of the hearing.
Given the opportunity to speak for himself, Kron asked that Daniel Ferrara be allowed to " testify." The court and Ferrara both responded that Ferrara had already made a statement while Kron was absent from the hearing room. When Kron asked to be informed as to what Ferrara had said, Ferrara responded " Good things." Kron sought further elaboration on what this meant, but the court stated that it was " not going to repeat it."
Kron stated that he felt that his rights had been abused by the police, and that he wished to sue the police commission. He stated that he wants to continue to maintain his house, and the furnace in his home works, but needs to be replaced. He hopes to have it paid for " under the Sandy Block Grant." His intention is to rent an apartment until the repairs on his home can be completed.
The court then proceeded to conduct a hearing on Stamford Hospital's application to have psychiatric medications administered to Kron without his consent. Estay stated that he refused to accept the medication, but " laid down by himself after being requested to do so in the presence of security." Dr. Upadhya stated that after Kron received the injection, he calmed down, and his reactions were better. In response to Rubino's question of whether the medication " knocks [Kron] out, " Dr. Upadhya responded that it calms his anxiety, so he sleeps naturally.
After the conclusion of statements regarding that application, the court asked attorney Matthew Caputo, the proposed conservator, whether he was willing to accept that role. Caputo responded in the affirmative. At that point, Kron stated: " I don't want him as a Conservator. Who is he? I don't know him from . . . I'd rather have Dan Ferrara as my Conservator." The court responded: " Okay. And Mr. Ferrara offered that up in your absence." Kron expressed his opinion that his rights and dignity were being violated by the proceedings. The court then closed the hearing.
The record reflects that none of the statements made to the court at the hearing, including those of Dr. Upadhya, were made under oath. Kron's medical records from Stamford Hospital were included in the record as item 9. Those records document admissions to Southwest Connecticut Mental Health System in 2008, 2009 and 2010, including an admission lasting ten days. Other items in the record show that Southwest Connecticut Mental Health System was involved with Kron when he had a CO problem with his furnace in 2011.
The only item apparently relevant to the state of Kron's mental health in 2014 is an Emergency Transportation Certificate signed by " J. Hodnicki, LCSW, MS" which reports his version of the confrontation with Kron on October 2, 2014 at Kron's residence when Kron came out of his house with " a bat and chased this worker off his property." The report also states that after the police were called, Kron slammed the door on them. The report concludes with the author's opinion that Kron is gravely disabled and is dangerous to others.
While there are letters, evaluations, and certificates dated October 2014 from the likes of Rachit Patel, M.D., Raj K. Bansal, M.D., Anton N. Chinniah, M.D., Cheryl Cottrol, a staff psychiatrist at Stamford Hospital concluding that Kron is gravely disabled, and therefore supporting the conservatorship and forced medication applications, there was no foundation for these documents.
Neither the record nor the probate court's decree reflect that the court admitted any of Kron's medical records into the evidence or relied upon them in reaching the conclusion that the statutory standard of clear and convincing evidence had been met.
The decree merely states " Medical Evidence has been presented . . ." without identifying any sworn testimony or documentary evidence. As noted herein, the record does not reflect that the court heard any sworn testimony and did not admit any exhibits into evidence.
THE COURT'S DECREES
As evidenced by items 7, 15 and 20 in the record, on October 24, 2014, the day of the hearing the court signed decrees: 1) granting the petition for involuntary commitment; 2) granting the application for appointment of an conservator of the person and estate; and 3) granting the application for authorization to administer psychiatric medication without consent.
COMMITMENT PURSUANT TO GENERAL STATUTES § 17a-498
General Statutes § 17a-498 sets forth the legal requirements for a civil commitment. Hopkins v. O'Connor, 282 Conn. 821, 837, 925 A.2d 1030 (2007). Subsection (c)(1) of that statute provides that for a commitment hearing: " The court shall require the certificates, signed under penalty of false statement, of at least two impartial physicians selected by the court, one of whom shall be a practicing psychiatrist, and each of whom shall be licensed to practice medicine in the state of Connecticut and shall have been a practitioner of medicine for at least one year and shall not be connected with the hospital for psychiatric disabilities to which the application is being made, or related by blood or marriage to the applicant, or to the respondent. Such certificates shall indicate that the physicians have personally examined the respondent not more than ten days prior to such hearing. The court shall appoint such physicians from a list of physicians and psychiatrists provided by the Commissioner of Mental Health and Addiction Services and such appointments shall be made in accordance with regulations promulgated by the Probate Court Administrator in accordance with section 45a-77. Each such physician shall make a report on a separate form provided for that purpose by the Probate Court Administrator and shall answer such questions as may be set forth on such form as fully and completely as reasonably possible. Such form shall include, but not be limited to, questions relating to the specific psychiatric disabilities alleged, whether or not the respondent is dangerous to himself or herself or others, whether or not such illness has resulted or will result in serious disruption of the respondent's mental and behavioral functioning, whether or not hospital treatment is both necessary and available, whether or not less restrictive placement is recommended and available and whether or not the respondent is incapable of understanding the need to accept the recommended treatment on a voluntary basis. Each such physician shall state upon the form the reasons for his or her opinions. Such respondent or his or her counsel shall have the right to present evidence and cross examine witnesses who testify at any hearing on the application. If such respondent notifies the court not less than three days before the hearing that he or she wishes to cross examine the examining physicians, the court shall order such physicians to appear."
General Statutes § 17a-498(c)(3) establishes the standard which must be met before a probate court can order an individual to be civilly committed. That subsection provides in relevant part: " If the court finds by clear and convincing evidence that the respondent has psychiatric disabilities and is dangerous to himself or herself or others or is gravely disabled, the court shall make an order for his or her commitment . . ."
General Statutes § 17a-498(h) mandates that: " The rules of evidence applicable to civil matters in Superior Court shall apply to hearings under this section."
The October 24, 2014 decree granting Stamford Hospital's petition for involuntary commitment states that " [a]fter due hearing . . . the court finds by clear and convincing evidence that [Kron] has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled . . . It is therefore ordered that [Kron] be committed to Greater Bridgeport Community Health Center . . . for the treatment of psychiatric disabilities." The record, however, fails to disclose the existence of any evidence to support the Probate Court's conclusion.
Presumably, the physicians' certificates mandated by General Statutes § 17a-498(c)(1), (Items 5 and 6 in the record), were available to the court at the October 24, 2014 hearing. Prior to the enactment of P.A. 14-203, a probate court might have accorded such reports evidentiary value and considered them in making statutorily mandated findings. The rights of the respondent were presumably protected by the final sentence of § 17a-498(c)(1) which states: " If such respondent notifies the court not less than three days before the hearing that he or she wishes to cross-examine the examining physicians, the court shall order such physicians to appear." The use of the phrase " cross-examine" could be viewed as manifesting a legislative intent that the probate court accord the certificates evidentiary weight, at least in the absence of the three-day notice requiring the physicians' presence at the hearing.
" The court shall require the certificates, signed under penalty of false statement, of at least two impartial physicians selected by the court, one of whom shall be a practicing psychiatrist . . ."
However, General Statutes § 17a-498 was amended, effective October 1, 2014, by Public Act 14-203, which added subsection (h). General Statutes § 52-174(b) provides in relevant part that " [I]n all . . . civil actions . . . any party offering in evidence a signed report and bill for treatment of any treating physician . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician . . . and that the report was made in the ordinary course of business." Reports of non-treating physicians are not admissible under the statute. Pineau v. Home Depot, Inc., 45 Conn.App. 248, 252-54, 695 A.2d 14 (1997), appeal dismissed, 245 Conn. 422, 713 A.2d 825 (1998).
Because some of the items in the record are hospital records, it is also worth noting that in Public Act 14-203 additionally amended section 17a-498(b)(2) to include " subject to the rules of evidence as provided in subsection (h) of this section, all such hospital records directly relating to the hospitalized respondent shall be admissible at the request of any party or the Probate Court in any proceeding relating to confinement to or release from a hospital for psychiatric disabilities . . ." The legislative history indicates that the primary discussion involving this amendment was the concern of Connecticut Legal Services that this language would in fact abrogate objections at a Probate hearing, but the organization's representative was assured that it would not. The amendment would only serve to ensure that Probate Courts adhered to more formal procedures.
The record of the October 24, 2014 hearing does not show that the Probate Court accepted either the report of Dr. Bansal or the report of Dr. Chinniah into evidence. The court's decree does not state what evidence the court found to be " clear and convincing." Because the hearing took place after October 1, 2014, and neither Dr. Bansal nor Dr. Chinniah were Kron's treating physicians, it is questionable as to whether they could be legally considered by the court in any case.
In both his brief and his post-argument brief, Matthew Caputo claimed that Kron had waived any objection to the Probate Court's failure to administer the witness' oath to Dr. Upadhya, or to formally admit the reports of Drs. Bansal and Chinniah and other documents into evidence. In support of this waiver argument, Caputo relies on two cases decided by our Supreme Court. The first case, Bassett v. Mechanics Bank of New Haven, 116 Conn. 730, 166 A. 385 (1933), was a civil case arising out of a receivership of a bank in which certain creditors appealed from an order approving payments to two appraisers and their assistants for making an appraisal of the assets of the bank. The findings of the Superior Court stated that the court had examined the receiver at some length with regard to the matter. However, no transcript of the proceedings before the Superior Court was made. The Supreme Court (of Errors) stated: " [I]n the absence of any transcript of the proceedings we cannot make any correction in or addition to the finding, and there is no basis upon the record for the appellants' claim that the order was passed without any evidence before the court justifying the allowances made." The court went on to note that the receiver " seems to concede in his brief, that he was not formally sworn as a witness, but this fact appellant's counsel must have known and if they wished to raise any objection based upon if they should have called it to the attention of the trial court at the time, when any defect of this nature could have been remedied; not having done so they waived any such defect." Id., 730.
The second case is State v. Paolella, 211 Conn. 672, 561 A.2d 111 (1989), a criminal case in which the defendant appealed his convictions of kidnapping in the second degree and assault in the third degree. Among the claims made by the defendant was that the defendant's minor son and the victim, his former spouse, were allowed to give testimony without being sworn in under oath. The Supreme Court reviewed the transcript of the colloquy between the court and the minor son and found that it was clear that the minor son was under oath when he testified. In dicta, the court went on to state that, based on the court's holding in Bassett, supra, the failure of the defendant's counsel to object to any irregularities in the administration of an oath to the son had been waived by the defendant's failure to object at the time of trial. The court quoted with approval from the decision of the 5th Circuit in United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981), where the court stated: " It has long been the general rule that even a failure to swear a witness may be waived. This may occur, either by knowing silence and an attempt to raise objection after verdict or by the mere failure of counsel to notice the omission before the completion of the trial." (Footnote omitted.).
In State v. Tyson, 86 Conn.App. 607, 862 A.2d 363 (2004), the Appellate Court considered a claim that the trial court erred in questioning jurors regarding a post-verdict claim of juror misconduct without placing them under oath. The defendant asserted that, despite the failure of his trial counsel to object, he was entitled to plain error review. Following the Supreme Court's holding in State v. Paolella, supra, the Appellate Court found that the defendant had waived his rights by failing to make a timely objection to the trial court's questioning the jurors without placing them under oath. The court rejected the claim of plain error stating: " Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in judicial proceedings." (Internal quotation marks omitted.) Id., 615.
Our Supreme Court recently considered the effect of an evidentiary impropriety where a document not admitted into evidence was given to the jury during its deliberations. Kortner v. Martise, 312 Conn. 1, 91 A.3d 412 (2014), overruled on other grounds by DeNunzio v. DeNunzio, 320 Conn. 178, 128 A.3d 901 (2015), was an appeal by the plaintiff in a personal injury action after a jury verdict in favor of the defendant. The basis of the appeal was the plaintiff's claim that she had been prejudiced when a clerk mistakenly allowed the jury to consider a letter which had not actually been admitted into evidence. After the jury questioned the clerk regarding the exhibit, the clerk failed to alert the court or the parties to the jury's inquiry. The strength of the plaintiff's claim was somewhat undermined by the fact that the letter in question had been pre-marked as a full exhibit by the plaintiff and defendant. The contents of the letter dealt with the conduct of an individual named John Jones. After a hearing on the plaintiff's motion in limine, the trial court ruled that no inquiries were to be made regarding John Jones without first alerting the court, and the court reserved any decision on the admissibility of the letter. During the trial, no evidence or testimony was presented regarding Jones. After the jury rendered a defendant's verdict the court met with jurors and was asked about the letter.
At a post-trial hearing seeking to set aside the verdict and order a new trial, the court learned that the jurors were confused by the letter because it had not been referenced let alone explained during the trial, and therefore sent a note to the clerk regarding the letter. The clerk responded to the note by telling the jury that she was familiar with the letter and that it was part of the evidence that the jury could consider. The trial court denied the motion to set aside the verdict finding that plaintiff's counsel had been responsible for the initial mismarking of the letter as a full exhibit, had never requested that the mismarking be corrected and had reviewed and consented to all of the exhibits before they were given to the jury. The trial court concluded that the plaintiff had waived the right to object to the jury's consideration of the letter.
The Supreme Court ruled that although the letter had been marked as a full exhibit, it was not properly in evidence and should not have been given to the jury. The court noted that Practice Book § 5-7 contemplates that exhibits must be received into evidence during the course of the trial. The court further ruled that the plaintiff had not waived her right to object to the jury's consideration of the letter because it had not been either offered or admitted into evidence. The court stated that " [a] determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial . . . Thus, our analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties' summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony." (Citation omitted; internal quotation marks omitted.) Id., 28-29. The court found that under the circumstances of the case, the jury's consideration of the letter was not harmless error.
Practice Book § 5-7, entitled " Marking Exhibits, " provides: " Unless otherwise ordered by the judicial authority, the clerk shall mark all exhibits not marked in advance of trial and shall keep a list of all exhibits marked for identification or received in evidence during the course of trial."
In contrast to Kortner where the jury had before it days of testimony and numerous exhibits which had properly been admitted into evidence, there were no exhibits which the probate court admitted into evidence and no sworn testimony supporting the probate court's decision. The record shows that the statements made by Dr. Upadhya at the October 24, 2014 hearing were unsworn and, accordingly, were not entitled to be accorded evidentiary weight. Moreover, Dr. Upadhya statements did not address the aforementioned statutory criteria set forth in § 17a-498(c)(3) and accordingly, could support the findings required by that subsection.
Two justices dissented from the majority opinion solely on the basis that the multitude of other evidence that was properly before the jury rendered the jury's consideration of the letter harmless.
After reviewing the record, the court finds that the probate court made no attempt whatsoever to comply with the mandates of § 17a-498(h) requiring that the October 24, 2014 hearing be conducted in accordance with the rules of evidence. The court finds that this disregard for Kron's rights was obvious and affected the fairness and integrity of the proceedings and could not help but undermine public confidence in the fairness of such hearings. Put simply, the decree could not have been based on any admissible evidence.
The court finds that the record demonstrates that Kron's substantial rights have been prejudiced by the failure of the court to follow the requirements of General Statutes § 17a-498(h). Kron's appeal from the order of the probate court civilly committing him is, accordingly, sustained.
APPOINTMENT OF CONSERVATOR PURSUANT TO GENERAL STATUTES § 45a-650
General Statutes § 45a-650 sets forth the standard which must be met before a probate court can appoint a conservator of the person or estate of an individual. Subsection (a) provides: " At any hearing on an application for involuntary representation, before the court receives any evidence regarding the condition of the respondent or of the respondent's affairs, the court shall require clear and convincing evidence that the court has jurisdiction, that the respondent has been given notice as required in section 45a-649, and that the respondent has been advised of the right to retain an attorney pursuant to section 45a-649a and is either represented by an attorney or has waived the right to be represented by an attorney. The respondent shall have the right to attend any hearing held under this section."
Subsection (c)(1) requires that after making the finding required by subsection (a), " the court shall receive evidence regarding the respondent's condition, the capacity to manage his own affairs, and the ability 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."
Significantly, subsection (b) mandates that: " The rules of evidence applicable to civil matters in the Superior Court shall apply to all hearings pursuant to this section. All testimony at a hearing held pursuant to this section shall be given under oath or affirmation."
Public Act 07-116 required probate courts to follow more formal procedures in connection with conservatorship applications. DeNunzio v. DeNunzio, supra, 320 Conn. 190. Because of the formalities now required in such proceeding, that public act established a new standard of review for hearings conducted on the record. That standard is set forth in General Statutes § 45a-186b.
As mentioned, Section 45a-186b provides in relevant part: " 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 (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. If the Superior Court finds such prejudice, the Superior Court shall sustain the appeal and, if appropriate, may render a judgment that modifies the Court of Probate's order, denial or decree or remand the case to the Court of Probate for further proceedings. For the purposes of this section, a remand is a final judgment."
In opposing Kron's appeal of the probate court's decree in the conservatorship proceedings, conservator Matthew Caputo makes the same waiver argument that he raised with respect to the commitment proceedings. For the reasons stated above the court rejects that argument. Moreover, the court notes that with respect to the conservatorship proceedings, the Probate Court not only failed to adhere to rules of evidence applicable to civil cases, as mentioned above, but the court ignored the express statutory directive that the testimony of witnesses be given under oath.
Caputo's counsel argued that the second sentence of Section 45a-650(b) was superfluous, yet this argument contravenes the plain language of the statute.
As noted above, the record of the October 24, 2014 hearing is devoid of any indication that the Probate Court received any testimony under oath or affirmation or received any admissible evidence. The court finds that the record demonstrates that Kron's substantial rights have been prejudiced by the failure of the court to follow the requirements of General Statutes § 45a-650(b). Kron's appeal from the order of the probate court appointing conservators of his person and estate is, accordingly, sustained.
In his brief, Kron also notes that the probate court failed to appoint, Daniel Ferrara, the person nominated by him as conservator despite that mandate of § 45a-650(h) that he be appointed " unless the court finds that the . . . nominee is unwilling or unable to serve or there is substantial evidence to disqualify such person." Kron further notes that the probate court failed to consider the five statutory factors required under § 45a-650(h). The probate court's failure to follow these statutory mandates constitutes reversible error. Falvey v. Zurolo, 130 Conn.App. 243, 255, 22 A.3d 682 (2011). These failures constitute a separate basis for sustaining Kron's appeal.