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describing and applying § 45a-186b standard in appeal from probate decree when proceedings were on record
Summary of this case from Barash v. LemboOpinion
FSTCV165015987
10-11-2017
In re Elvira Fumega v. Norwalk Probate Court et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PROBATE APPEAL
Hon. Charles T. Lee, J.
This case comes before the court on the appeal from a decree of the Norwalk-Wilton Probate Court filed on September 19, 2016 by plaintiffs, Myrna Fumega-Serrano (Myrna), Berta Fumega (Berta), Robert Fumega (Robert), and Marie Patsch (Marie). The decree at issue was dated July 27, 2016, postmarked August 4, 2016, and, over objection of the plaintiffs, appointed Attorney Matthew Caputo as an independent conservator of the person and the estate of Elvira Fumega (Elvira), who is the mother of plaintiffs. As a result of that appointment, the court terminated the power of attorney (POA) in favor of Myrna for Elvira.
On December 9, 2015, Edward Koku, a case worker in Elderly Protective Services of the Department of Social Services (DSS), filed a petition in the Probate Court for Norwalk-Wilton on behalf of the DSS for appointment of a conservator for the person of Elvira and for her estate. The petition said Elvira " is confused, unable to care for self and resides in a volatile situation created by her three daughters who appear to have significant disagreements with each other and respondent care [sic]. The latter situation appears detrimental to respondent's emotional health and poses a risk to her safety and psychological wellbeing." The petition proposed the appointment of Attorney Matthew Caputo as conservator.
On December 11, 2015, the Probate Court appointed Attorney Ellen Hain as attorney for Elvira. Also on December 11th, the court issued an order of notice to the respondent, Elvira, and Myrna, Berta Fumega, Marie, Robert Fumega, Attorney Caputo and DSS for a hearing to consider the petition on December 29, 2015. On or about December 18, 2016 and thereafter, various motions for continuance of the hearing were filed and the hearing was rescheduled for February 2, 2016. Counsel for Marie filed her appearance on December 23, 2015, and counsel for the DSS appeared on January 28, 2016. Attorney Hain filed her report on February 1, 2016. At the February 2, 2016, hearing Attorney Hain stressed the need for documentation that Elvira's money and health were being appropriately managed. The hearing was continued and Attorney Hain filed a motion for an order for an accounting from Myrna for the period March 21, 2014 (the date of Myrna's POA) through February 2, 2016 " of all property of the respondent . . . and all transactions undertaken on behalf of the respondent during that period." The motion also requested submission of proof of ownership of any property Myrna claimed was hers and not her mother's. Counsel for Robert Fumega and eventually for Myrna, Attorney Alexander Schwartz, appeared on February 8, 2016. On February 17, 2016, the Probate Court granted the motion for an accounting and directed that it be filed no later than March 1, 2016. No accounting was filed. A hearing management conference attended by counsel occurred on June 29, 2016.
The hearing on the petition for the appointment of a conservator of Elvira's person and estate went forward on July 27, 2016. In attendance were the three sisters and Robert Fumega and their two lawyers, as well as DSS personnel and counsel, and Attorney Caputo. After hearing evidence and argument, the Probate Court appointed Attorney Caputo as the independent conservator of the estate and the person. In its decree, the Probate Court found that Elvira Fumega was ninety-two years of age, and suffered from a mental, emotional, or physical condition, which impaired her ability to meet essential requirements for her personal needs and her ability to manage her affairs. See Decree, p. 1-2. Elvira Fumega's condition caused erratic and impulsive behavior, which heightened the risk of physical abuse. Id., p. 2. The testimony revealed that the discord and conflict among the daughters was detrimental to Elvira Fumega's health. Id., p. 2. Specifically, the daughters were so volatile that the police were called on several occasions and Myrna Fumega, acting as POA, filed eviction proceedings against her sister, Marie Patsch, despite her acknowledgment that Elvira would not have wanted such legal action taken on her behalf. Id., p. 2. The petitioner DSS testified through Edward Koku, a caseworker, that a review of the financial records demonstrated expenses inconsistent with Elvira's needs and raised concerns of financial exploitation. See Decree, p. 2.
As mentioned above, the plaintiffs filed their complaint on September 19, 2016, as well as a motion to stay the Probate Court's decree. Defendant DSS filed a motion to dismiss for lack of standing on November 15, 2016. On January 4, 2017, plaintiff filed an amended complaint. By order of January 17, 2017, the court granted the motion to dismiss in part and found that only Myrna had established aggrievement. Accordingly, the plaintiffs will be referred to in the singular hereinafter. Myrna has been self-represented in the proceedings in this court.
The return of record was filed on February 6, 2017. On March 6, 2017, plaintiff filed a substituted complaint. In conference, the parties agreed to consolidate the hearing on the motion to stay with the hearing on the merits of the appeal. Plaintiff submitted her memorandum in support of the appeal on April 20, 2017, and the defendants submitted their memorandum in opposition on May 26, 2017. Plaintiff submitted a reply memorandum on June 8, 2017, and the case was heard on June 13, 2017.
The plaintiff pursues this appeal on statutory and non-statutory grounds for six reasons: (A) the Probate Court failed to follow General Statutes § 45a-650(f) because Elvira's personal needs and property management were met adequately by Myrna acting as POA and health care representative and agent (HCRA); (B) the Probate Court failed to consider the factors relevant to the appointment of a conservator set forth in General Statutes § 45a-650(g), specifically § § 45a-650(g)(2) through (8); (C) the Probate Court failed to follow General Statutes § 45a-650(h) with respect to the qualification of the proposed conservator; (D) the Probate Court violated the Code of Probate Judicial Conduct Rule 2.3(b) when it issued an unnecessary, ill-considered, and biased ruling against Elvira and her family's culturally and ideologically communal lifestyle; (E) the Probate Court violated her procedural due process rights; and (F) the Probate Court abused its discretion in violation of General Statutes § 45a-186b(6) when it appointed an independent conservator of Elvira's person and estate and terminated Myrna's POA executed by Elvira. As more fully discussed below, the court affirms the decree of the Probate Court and dismisses this appeal.
In her reply memorandum, the plaintiff argues that the Probate Court violated General Statutes § 45a-650(b), General Statutes § 45a-650(c)(1)(a), General Statutes § § 45a-650(f)(1), (2), and (3), General Statutes § § 45a-650(g)(2) through (8), General Statutes § § 45a-650(h)(3), (4), and (5), General Statutes § 45a-650(i), General Statutes § 45a-650(j), and General Statutes § 45a-650(l). The plaintiff's brief, however, fails to address § § 45a-650(h)(3), (4), and (5), § 45a-650(i), § 45a-650(j), and § 45a-650(l) or provide any legal analysis. In fact, the plaintiff's reply memorandum does not further address these statutes at all. The court, therefore, will not consider these claims. See Papa v. Hoffman, Superior Court, judicial district of New Haven, Docket No. CV-15-6008077-S, (April 6, 2016, Cronan, J.).
EVIDENCE ADDUCED AT THE PROBATE HEARING
At the outset of the hearing, counsel for the parties stipulated as to " notice, jurisdiction and incapacity." Transcript of July 27, 2017 hearing (" Tr."), at 6-7. Additionally, the court submitted into the record without opposition medical reports, including some previously received at the hearing on February 2nd, i.e., the Physician's Evaluation/Conservatorship of Dr. Mark Dam, dated November 30, 2015 and July 26, 2016, of Dr. Allison Ostroff dated December 24, 2015 with her letters of January 8, 2016 and July 25, 2016, of Dr. Jason Fischel dated November 30, 2015 (erroneously referenced as April 40, 2015 in the ROR), and of Attorney Ellen Hain, dated February 1, 2016. Id., at 7. Attorney Caputo testified as to his extensive experience as a conservator of the person and of the estate, his practices and consideration of the wishes of the respondent and the family. Id., at 10-14. The court stated, without objection, that the parties stipulated that, if an independent conservator were appointed, Attorney Caputo would be acceptable. Id., at 9-10. Myrna stated that his qualifications were " pretty clear." Id., at 15.
The court heard extensive testimony from Mr. Koku, the DSS social worker assigned to investigate the case. Mr. Koku testified that he first met Elvira at her home in Norwalk on September 28, 2015, with her daughter Myrna. Elvira was 91 years old, frail, disoriented, and spoke no English. Id. at 19-20.
Accordingly, he returned soon thereafter with an interpreter and made several subsequent unscheduled visits to the house. Myrna told him that she and her sisters Berta Fumega and Marie Patsch lived with Elvira in the house. Elvira told the interpreter that she wanted to live with the family all together in the house. She also told the interpreter that she believed all of them would benefit from the presence of another caregiver because of caregiver stress. Id. at 30, 86. Mr. Koku asked Myrna about the allegations of emotional and physical abuse and financial exploitation. She said that her mother suffered from advanced dementia and would get very upset when Marie argued with her sisters. Elvira also would talk to her dead parents and brother, who had died in the Spanish Civil War. When asked about the several visits to the house by the Norwalk Police because either Elvira was not cooperating or the sisters were fighting, Myrna said that Marie had called them. She also said she suspected that Marie had made the complaint to the DSS, which led to Mr. Koku's visit, and had caused three to six prior visits by the DSS. Myrna said she had commenced eviction proceedings to remove Marie from the house. Id., at 20-24, 45-47, 91-92.
Mr. Koku suggested that they bring in a paid caregiver to help with their mother, but Myrna said there were insufficient funds for that. Mr. Koku then suggested that they should look into Title XIX Medicaid funds, but he was concerned that multiple financial transfers in and out of the country might make Title XIX problematic. When he inquired further as to the family's financial arrangements, Myrna suggested he contact her lawyer, Attorney Alexander Schwartz. Id., at 31-32, 45-47.
Mr. Koku called Attorney Schwartz on October 16, 2015, who refused to give him financial records. As a result, Mr. Koku served Myrna with a subpoena and she provided bank statements. The records concerned Mr. Koku because there appeared to be several hundred thousand dollars in the accounts which were jointly in Elvira and Myrna's names. Myrna had a power of attorney, which enabled access to her mother's funds. Substantial expenses were being drawn against the accounts, which seemed to be of little benefit to Elvira, such as car insurance (Elvira did not drive), a lot of food (approximately $28,000 for less than two years), and purchases for a computer and other things unlikely to be of much use to a 91-year-old. Tr. at 31-32. However, Myrna would not discuss her management of the funds.
Myrna submitted a one-page financial summary at the hearing. Id., at 36. It showed a balance of $697,735 as of March 21, 2014, including the value of the house, which was in Elvira's name, of $400,000. Mr. Fumega died in 1998, and Myrna moved in at that time. Most of the balance of the account came from that sale of property in the parents' name in Spain, with $60,000 attributable to Myrna. Id. at 54-55. Myrna was contributing a monthly social security check of about $680. Mr. Koku reiterated his concerns about some of the expenditures being made out of the joint account, including legal fees for the eviction proceeding against Marie, and Adobe software purchases. Id. at 40. Expenses totaled $85,000 for a two-year period. Id., at 101. Additionally, household expenses, such as oil, property taxes, and water and electric charges were being paid out of the joint account, and he saw no evidence that any of the three sisters living in the house were contributing to such costs. Id., at 41. Myrna was unemployed, Marie worked as a caretaker. He had no information as to Berta. Id. at 43. As a result, the funds were not being used exclusively for Elvira's benefit, and he recommended that someone other than Myrna should manage the finances. Id.
Having read the report of Dr. Ostroff, who is Elvira's geriatrician, Mr. Koku expressed his concern about maltreatment and medical neglect. The sisters have not brought in additional caregiver help and have trouble managing her. Id. at 60-71. He said, " It is not easy managing a 92-year-old with advanced dementia." He said he had tried to implement the least restrictive interventions, such as working with the family, applying for Title XIX funds and getting an additional caregiver, without success. He had filed the petition because the family was not cooperating with him, he was not getting information, and the risk to Elvira was not being mitigated. Id. at 76-80. Even if the family was getting along, which they were not, an additional caregiver would be necessary because, among other things, Elvira needed assistance with the activities of daily life (ADL). Id., at 80, 87.
Myrna testified that she was evicting Marie because Elvira was agitated by Marie's confrontations with her sisters. Id. at 91. Elvira said she wanted Marie to stay in the house, but sometimes also said she wanted her to leave. Id., at 92-93. Berta works as an interpreter/translator and virtual assistant to two contractors. She makes $36,000 to $40,000, but does not contribute any money to the household, other than buying some groceries and lamps. Marie puts no money into the household, but occasionally shares her food with Elvira on the weekends. Id., at 103-05.
After a recess, Judge DiPanfilis advised that he was going to appoint a conservator because the sisters were not taking adequate care of their mother and were taking advantage of her financially. He said he could not appoint one of them as the conservator because they were not getting along. Id., at 108-10.
Additional facts will be supplied as necessary in the discussion below.
DISCUSSION
In DeNunzio v. DeNunzio, 320 Conn. 178, 190-91, 128 A.3d 901 (2016), our Supreme Court noted that, in 2007, the Legislature recast the standards and procedure for appointing a conservator in Probate Court,
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 § 45a-186[a]); Lesnewski v. Redvers, supra, 276 Conn. at 543, 886 A.2d 1207. Because of the 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. at 256-57, 22 A.3d 682 (explaining that this standard also applies to appellate courts).
As a result of the foregoing, it is clear that plaintiff's appeal must be reviewed as a record appeal and not a de novo appeal, and that the decision of the Probate Court must be affirmed unless plaintiff establishes that her substantial rights have been prejudiced by reason of one of the violations enumerated in General Statutes § 45a-186b. 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.
The plaintiff appeals on the grounds of § 45a-186b(1), arguing that the Probate Court failed to follow § § 45a-650(f), (g), and (h), violated the Code of Probate Judicial Conduct and her procedural due process rights, and that the decision constituted an abuse of discretion.
A Violation of Section 45a-650(f)--Necessity of Appointment of Conservator of Estate and Person
First, the plaintiff argues that the Probate Court failed to follow § 45a-650(f). Section 45a-650(f) provides in relevant part:
(1) If the court finds by clear and convincing evidence that the respondent is incapable of managing the respondent's affairs, that the respondent's affairs cannot be managed adequately without the appointment of a conservator and that the appointment of a conservator is the least restrictive means of intervention available to assist the respondent in managing the respondent's affairs, the court may appoint a conservator of . . . her estate after considering the factors set forth in subsection (g) of this section. (2) If the court finds by clear and convincing evidence that the respondent is incapable of caring for . . . herself, that the respondent cannot be cared for adequately without the appointment of a conservator and that the appointment of a conservator is the least restrictive means of intervention available to assist the respondent in caring for . . . herself, the court may appoint a conservator of . . . her person after considering the factors set forth in subsection (g) of this section. (3) No conservator may be appointed if the respondent's personal needs and property management are being met adequately by an agency or individual appointed pursuant to sections 1-350g and 1-352, or section 19a-575a, 19a-577, 19a-580e or 19a-580g.
The plaintiff argues that, as POA and HCRA, she was appropriately managing and directing Elvira's medical needs and financial affairs, and therefore, the decree should be overturned or be rescinded, and Myrna's appointment as POA and HCRA should be reinstated.
The court finds that the Probate Court determined that an independent conservator was necessary after relying upon substantial evidence regarding the financial affairs and medical needs of Elvira Fumega, which established that she suffers from dementia, needs significant care, is unable to manage or understand her financial or legal matters, and is easily confused. In fact, the parties at the hearing stipulated as to Elvira's incapacity. Transcript of July 17, 2016 hearing (" Tr.") at 6.
In particular, the Probate Court relied upon the testimony of Mr. Koku, reports from Dr. Alison Ostroff M.D, Elvira Fumega's treating physician, and Dr. Mark Dam, M.D., in determining Elvira Fumega's inability to care for herself, and considered the report prepared by Ellen Hain, Elvira Fumega's appointed attorney, in connection with the petition, in determining that Elvira Fumega cannot be adequately cared for without the appointment of a conservator, although Attorney Hain recommended against one.
As mentioned above, the parties stipulated as to Elvira's incapacity. The decision as to whether to appoint an independent conservator instead of allowing Myrna to continue in her role as POA was the central question of the hearing. The court's decision that Elvira's health and finances were not being properly managed, and that appointment of a conservator was the least restrictive means of intervention available to assist her, was amply supported by the evidence received at the hearing, as set forth above.
B Violation of Section 45a-650(g)--Factors to Consider in Deciding Whether to Appoint a Conservator
The plaintiff argues that the Probate Court failed to consider the factors in § 45a-650(g) in determining whether a conservator should be appointed, specifically (g)(2) Elvira's capacity to understand and articulate an informed preference as to the care of her person or the management of her affairs; (g)(4) evidence of Elvira's past preferences and life style choices; (g)(6) desirability of maintaining continuity in the respondent's life and environment; (g)(7) adequacy of previous arrangements for health and financial management; and (8) material evidence from family and others regarding past practices and preferences.
Section 45a-650(g) provides in relevant part that the court should consider the following factors in determining whether a conservator should be appointed: " (1) The abilities of the respondent; (2) the respondent's capacity to understand and articulate an informed preference regarding the care of . . . her person or the management of . . . her affairs; (3) any relevant and material information obtained from the respondent; (4) evidence of the respondent's past preferences and life style choices; (5) the respondent's cultural background; (6) the desirability of maintaining continuity in the respondent's life and environment; (7) whether the respondent had previously made adequate alternative arrangements for the care of . . . her person or for the management of . . . her affairs, including, but not limited to, the execution of a durable power of attorney . . . the appointment of a health care representative or healthcare agent . . . (8) any relevant and material evidence from the respondent's family and any other person regarding the respondent's past practices and preferences; and (9) any supportive services, technologies or other means that are available to assist the respondent in meeting . . . her needs."
Before discussing these contentions individually, the court notes generally that § 45a-650(g) sets forth factors for the court to consider in appointing a conservator, but it does not prescribe the evidentiary standard by which the court must evaluate these factors. Falvey v. Zurolo, 130 Conn.App. 243, 251, 22 A.3d 682 (2011). " [A] reasonable inference from the statute is that the court should base its determination on evidence adduced during a hearing at which interested parties have the right to participate." Id. The Probate Court, therefore, should base its determination on evidence adduced during a hearing at which interested parties have the right to participate.
In the present case, the decision of the Probate Court expressly states: " [h]aving considered the factors set forth in § 45a-650(g), the court further finds by clear and convincing evidence that [Elvira Fumega's] personal needs are not being met adequately by an agency or individual." See Decree, p. 2. As set forth in greater detail below, the court finds that the evidence adduced at the hearing supports the Probate Court's statement that it considered the factors of § 45a-650(g).
(g)(2) Capacity to Make an Informed Preference
The plaintiff claims that the Probate Court disregarded § 45a-650(g)(2) because it failed to consider that Elvira executed a POA in favor of her daughter Myrna. However, the POA was admitted into evidence as Exhibit 2. Although Elvira had a valid POA appointment, the Probate Court determined that an appointment of an independent conservator was necessary given the testimony of Edward Koku and Attorney Hain's statement that the appointment of the plaintiff as HCRA for Elvira Fumega in the POA documents was invalid. While Attorney Hain's report also said she was unaware of any wish on Elvira's part other than to appoint Myrna to represent her wishes on both financial and medical decisions, Dr. Ostroff and Dr. Dam's report were consistent in saying that Elvira did not have the ability to manage her financial or medical affairs and suffered from permanent and progressive dementia, which drew her ability to make an informed decision into question.
(g)(4) Past Preferences and Life Style Choices
Plaintiff argues that the Probate Court did not consider § 45a-650(g)(4) as Elvira Fumega is from Spain and has always practiced a communal lifestyle and ideological beliefs, and thus, has always shared her living quarters, finances, and property with her daughters. On the contrary, the court received evidence that Elvira had lived with her daughters for an extended time and wished to continue to do so. Indeed, she found it upsetting that Myrna was trying to evict Marie. However, there was no evidence submitted at the hearing by Myrna or her counsel as to Spanish attitudes regarding a communal lifestyle and the sharing of financing and property. Having failed to provide evidence on this point at the hearing, she cannot raise it on appeal. Indeed, it would be grossly improper for the Probate Court to base its decision on something not in the evidence before it.
(g)(6) Desirability of Continuity of Environment
Plaintiff claims § 45a-650(g)(6) would be best served by keeping Elvira in her own home and in the care of her daughters, who culturally and historically understand Elvira's post-traumatic stress disorder. The court was plainly aware of the value of keeping Elvira in her home with her daughters. The appointment of a conservator does not change that. The Probate Court relied upon Mr. Koku's testimony regarding the need for an additional caregiver, the disruptive nature of the siblings' interaction and their negative impact on Elvira's health, the resistance by Myrna as POA, and her lack of transparency regarding Elvira's finances, as factors that needed attention while staying in the home.
(g)(7) Adequacy of previous arrangements
Plaintiff claims that, within the meaning of § 45a-650(g)(7), Elvira had made adequate alternative arrangements, which predate her diagnosis with dementia, for her care and management of her affairs when she appointed her Myrna as POA and HCRA and her son, Robert, as alternate POA and HCRA in the event that Myrna should be unwilling or unable to function as such. This evidence was presented at the hearing, but the court after careful consideration concluded that such arrangements were not adequate to care for Elvira.
This conclusion was supported by substantial evidence that Elvira's daughters were unable to appreciate, agree on, and safely manage the level of care required for their mother, and therefore, professional caregivers should be hired to provide the skilled care required. Mr. Koku requested financial documentation from Myrna regarding Elvira's financial needs, but Myrna did not provide the requested financial documentation. Mr. Koku, therefore, filed a subpoena to obtain financial records, in which financial documentation showed expenses inconsistent with Elvira's needs and raised concerns of financial exploitation. Accordingly, there was sufficient evidence in the record to support the Probate Court's conclusion that Elvira's prior arrangements were not adequate to serve her needs.
(g)(8) Any relevant information from respondent's family
Plaintiff argues that the court failed to ask her and family members whether they agreed with the appointment of the conservator. This argument reveals a fundamental misunderstanding of the judicial process. Plaintiff and her family attended the hearing and were represented by counsel. It was incumbent upon them to come forward with anything they wanted the Probate Court to consider. The court would be justified in assuming that their counsel would present what his clients wanted him to present and would ask plaintiff appropriate questions while she was on the witness stand.
The court finds that the Probate Court considered the factors set forth in § 45a-650(g). The plaintiff's argument that there is no longer a conflict between the daughters, because Marie moved out of Connecticut in September 2016, is irrelevant because " the Superior Court cannot consider events that occurred after the Probate Court hearing . . ." (Emphasis altered.) In re Probate Appeal of Cadle Co., 152 Conn.App. 427, 439, 100 A.3d 30 (2014). The Probate Court, therefore, adequately considered the factors enumerated in § 45a-650(g), and appointed a conservator of Elvira Fumega's person and estate upon finding, by clear and convincing evidence, that Elvira was incapable of managing her affairs and that she was incapable of caring for herself, as contemplated. Accordingly, the court finds no merit in the plaintiff's claim of error in this regard.
At the crux of plaintiff's appeal, Myrna seeks to introduce numerous facts, including representations regarding the Spanish lifestyle, her father's will and the fact that Marie has subsequently moved to Florida, which were not presented to the Probate Court. While they might form a basis of a request that the Probate Court modify or terminate the conservatorship in light of changed circumstances, they cannot be part of this court's review of the propriety of the Probate Court's decree in light of the facts before it at the time of its decision.
C Violation of Code of Probate Judicial Conduct Rule 2.3(b)
Third, the plaintiff appeals on the ground that the Probate Court issued an unnecessary, ill-considered, and biased ruling against Elvira Fumega and her family's culturally and ideologically communal lifestyle in violation of the Code of Probate Judicial Conduct Rule 2.3(b). Rule 2.3(b) provides:
A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice or engage in harassment including, but not limited to, bias, prejudice, or harassment based on race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation and shall not condone such conduct by court staff, court officials, or others subject to the judge's direction and control.
Manifestations of bias or prejudice may include 'facial expressions and body language . . .'Id., comment (b).
The plaintiff argues that Judge DePanfilis was culturally, ideologically, and gender biased because he accused the plaintiff of living off of Elvira's assets when the plaintiff's father, Modesto Fumega, left two-thirds of his estate to be divided equally among his children. However, that information was not before the court, and there was no proof of Mr. Fumega's will provided in the hearing.
The plaintiff further argues that Judge DePanfilis, in the performance of judicial duties, manifested gender bias because he asserted in abusive terms on the record that the sisters' work as health care providers for Elvira did not constitute work and further insinuated that it was their responsibility as her daughters to care for their mother given that they are women.
This court has carefully reviewed the transcript of the hearing before Judge DePanfilis. It is true that the court appeared to get angry when it learned of the factual situation of the three sisters, who were living at the incapacitated mother's expense and failing to provide her with adequate care. The court used strong language to express its view. However, there was not a scintilla of bias or discrimination in its remarks.
D. Procedural Due Process Violations
Fourth, the plaintiff argues that the Probate Court violated her procedural due process rights at the July 27, 2016 hearing because (1) the plaintiff was not provided notice and an opportunity to be heard; (2) neither the Probate Court nor the plaintiff's counsel asked the plaintiff whether she agreed to stipulate to the appointment of Attorney Caputo in the event that the Probate Court deemed an independent conservator necessary; and (3) the Probate Court has failed to comply with her repeated requests for an unedited copy of the recording and transcript of the July 27, 2016 hearing.
There is no merit to plaintiff's assertions. First, the parties stipulated on the record as to the adequacy of notice, precluding this argument by plaintiff. Second, plaintiff's counsel agreed to the appointment of Attorney Caputo in the event an independent conservator was to be appointed. Plaintiff was bound by the statements of her counsel on the record in her presence, to which she did not object. Third, the court notes that the CD recordings of the hearing are on file with the court and have been available since no later than February 2017. There has been no deprivation of plaintiff's due process rights. " The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." (Internal quotation marks omitted.) Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
E. Section 45a-186b(6) Abuse of Discretion
Finally, the plaintiff appeals generally under § 45a-186b(6), arguing that the Probate Court acted in abuse of its discretion when it appointed an independent conservator of Elvira's person and estate and terminated Myrna as POA. Section 45a-186b(6) provides in pertinent 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 . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. The standard of review is " whether, in light of the evidence, the [tribunal] acted unreasonably, arbitrarily, illegally or in abuse of its discretion." King's Highway Associates v. Planning & Zoning Commission, 114 Conn.App. 509, 514, 969 A.2d 841 (2009); see also Sayler v. Connell, Superior Court, judicial district of Middlesex, Docket No. CV-09-4010558-S, (January 29, 2010, Bear, J.).
The plaintiff argues that the Probate Court abused its discretion because it: (1) relied upon perjurious, defamatory, and unsubstantiated allegations of abuse and neglect; (2) allowed the petitioner of the Probate Court action to act as an expert witness; (3) issued a decree, which was not justified by the facts or the applicable law pursuant to § 45a-650; (4) issued a decree on an erroneous finding of fact because he was not interested in in-depth testimony from anyone besides the petitioner; (5) issued a biased and arbitrary decree; and (5) removed Myrna as POA because she brought a summary process action against Marie.
The court finds that there is no evidence in the record that the Probate Court abused its discretion, and instead, finds that the Probate Court relied upon extensive probative evidence. As a matter of first importance, the decree of the Probate Court was clearly within its discretion because it was strongly supported by the evidence before the court. Elvira's incapacity was stipulated by the parties at the beginning of the proceeding, consistent with the medical evidence submitted. The Probate Court considered the conclusions of Dr. Ostroff regarding Elvira Fumega's condition. On January 17, 2016, Dr. Ostroff submitted a report, dated December 24, 2015, which provided that Elvira Fumega was unable to perform her activities of daily living and had practiced self-neglect by refusing to take her medication. On January 8, 2016, Dr. Ostroff submitted an additional report to the Probate Court, which stated that Elvira Fumega's diagnosis of dementia had not changed. On July 25, 2016, Dr. Ostroff submitted an additional report to the Probate Court, which stated that Elvira Fumega's condition was rapidly declining and now required twenty-four-hour assistance. On July 26, 2016, Dr. Dam submitted a similar report to the Probate Court that stated Elvira Fumega's ability to care for herself and manage her financial affairs was impaired and, thus, needed twenty-four-hour caregiver support.
The Probate Court relied on clear and convincing evidence that Elvira was incapable of managing her affairs and caring for herself. The Probate Court considered Mr. Koku's credible testimony regarding the need for an additional caregiver for Elvira that was not being provided, the disruptive nature of the siblings' interactions to Elvira's health, Myrna's resistance as POA, her lack of transparency regarding Elvira's finances, and the use of Elvira's funds without benefit to her. Further, Attorney Hain's report reviewed " numerous police reports regarding incidents that occurred at [Elvira] Fumega's home . . ." " the entire Superior Court--Housing Session at Norwalk file for the Summary Process proceeding filed by Myrna Fumega . . . as attorney-in-fact for her mother against . . . Patsch " and Myrna Fumega's lack of transparency regarding finances. The Probate Court found on the record that Mr. Koku was well-qualified to render an expert opinion as to the negative impact on Elvira of the family's conflict by reason of his Master of Social Work degree from Columbia University and his substantial experience in the field. Tr. at 16, 29.
There is no evidence that the Probate Court relied upon perjurious, defamatory, and unsubstantiated allegations of abuse and neglect. Instead, the Probate Court relied upon reports from Attorney Hain and medical reports from Dr. Dam and Dr. Ostroff. The court notes that deference is to be shown to the Probate Court's determination regarding credibility of the witnesses before it. Falvey v. Zurolo, 130 Conn.App. 243, 257, 22 A.3d 682 (2011) (" [W]e will give deference to the Probate Court's determination of the credibility of witnesses and its factual determinations. Cf. Kirei v. Hadley, 47 Conn.App. 451, 457, 705 A.2d 205 (1998) (credibility of witnesses within province of hearing officer").
The Probate Court considered the summary process action brought by Myrna against Patsch because Myrna admitted that Elvira would not have wanted such legal action taken on her behalf, and because the legal fees were further depleting the joint account. There is no evidence that the Probate Court refused to listen to any properly proffered witness, including the plaintiff, although the court did maintain an orderly proceeding and would not let the parties speak out of turn. Finally, as discussed in Point C, above, there is no evidence of bias in the Probate Court's ruling.
CONCLUSION
The court finds that the decision of the Probate Court was based upon competent and compelling evidence, the totality of which supports the decision to appoint an independent conservator of Elvira's estate and person. The court further finds that the plaintiff has failed to demonstrate that her substantive rights were prejudiced by any findings, conclusions, or decisions of the Probate Court. Section 45a-186b mandates that in the absence of such showing of prejudice, the Superior Court " shall affirm the decision of the court of probate." Accordingly, the court affirms the decree of the Probate Court and dismisses this appeal.