Benjamin F. v. Dep't of Developmental Servs.

• Decision Date: 02 November 2021
• Docket Number: AC 44025
• Citation: 266 A.3d 159,208 Conn.App. 423
• Parties: BENJAMIN F. et al. v. DEPARTMENT OF DEVELOPMENTAL SERVICES et al.
• Court: Connecticut Court of Appeals

208 Conn.App. 423

266 A.3d 159

BENJAMIN F. et al.

v.DEPARTMENT OF DEVELOPMENTAL SERVICES et al.^*

AC 44025

Appellate Court of Connecticut.

Argued May 25, 2021

Officially released November 2, 2021

Benjamin M. Wattenmaker, with whom, on the brief, was John M. Wolfson, Hartford, for the appellants (plaintiffs).

Emily V. Melendez, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellees (defendants).

Bright, C. J., and Alvord and Pellegrino, Js.

ALVORD, J.

The plaintiffs, Benjamin F. and his mother and guardian Denise F., appeal from the judgment of the Superior Court dismissing their administrative appeal from the decision of the defendant Commissioner (commissioner) of Developmental Services, concluding that Benjamin is not eligible for services from the defendant Department of Developmental Services (department). On appeal, the plaintiffs claim that (1) the final decision of the commissioner violates the plain language of General Statutes § 1-1g, on the basis that the amended version of the statute no longer permits the commissioner to consider more than one intelligence test where the applicant has presented a full-scale intelligence quotient (IQ) score below seventy, (2) alternatively, that if the statute permits consideration of more than one test, the commissioner is required to consider all full-scale IQ scores, (3) the Superior Court erred in refusing to take judicial notice of certain Probate Court records, (4) the Superior Court erred in declining to apply the doctrine of judicial estoppel, and (5) the final decision was not supported by substantial evidence in the record. We affirm the judgment of the court.

The record reveals the following facts and procedural history. On February 1, 2018, Denise filed an application on behalf of Benjamin, seeking services related to his intellectual disability and autism spectrum disorder. By letter dated April 5, 2018, the department communicated to Denise that Benjamin was not eligible for department services. Denise thereafter requested a formal eligibility hearing, which was held in October, 2018.

On October 29, 2018, the department's hearing officer issued a proposed decision (proposed decision) concluding that Benjamin was eligible for services. The hearing officer made the following findings of fact. Denise had filed two previous applications for department benefits on behalf of Benjamin, which had been denied in 2011 and 2015. In 2016, a cognitive assessment was completed by Chris Abildgaard, a psychologist with Benhaven Learning Network (Abildgaard report). "[Benjamin's] full-scale IQ score was 65 on the [Wechsler Adult Intelligence Scale—Fourth Edition (WAIS-IV)], his [Verbal Comprehension Index (VCI)] score was 74 (which falls in the borderline range), his [Perceptual Reasoning Index (PRI)] score was 73 (which falls in the borderline range), his [Working Memory Index (WMI)] score was 74 (which falls in the borderline range), and his [Processing Speed Index (PSI)] score was 59 (which fell in the extremely low range and is effected by his seizure disorder)." On July 3, 2018, an evaluation of cognitive functioning was completed by Andrew R. Moyer, a school psychologist and behavior analyst (Moyer report). "His [Woodcock-Johnson Test of Cognitive Abilities—Fourth Edition] was 66, which is in the very low range." "On May 28, 2018, a transition planning evaluation was completed by Margaret Kardos, PhD of Kardos Educational Consulting, LLC [(Kardos report)]. ... On the Adaptive Behavior Assessment System—3rd Edition (ABAS-3) his skills fall in the extremely low range. Areas of significant weakness were noted in all domains across all settings." "On February 20, 2018, an Autism Spectrum Assessment Program Evaluation report was prepared by Kerri Byron, CCC-SLP of Connecticut Children's Medical Center. His diagnoses were epilepsy, learning disability and autism. ... On October 4, 2018, a letter was prepared by Mark Schomer, M.D., Pediatric Epilepsy and Neurology of Connecticut Children's Specialty Group, Department of Neurology, recommending that [Benjamin] receive full disability benefits [(Schomer letter)]. ... On October 30, 2008, an educational evaluation was prepared by Cheryl Carroll, special education teacher at Salem Board of Education, Department of Special Education. ... In October of 2008, a psychological evaluation was prepared by Donna Zuber, school psychologist at Salem Public Schools. ... His overall memory ability is in the very deficient range. ... On April 16, 2008, a pediatric neuropsychology consultation was prepared by Marisa Spann, PhD, clinical neuropsychologist at Yale University School of Medicine. ... His full-scale IQ was 52." (Citations omitted.)

In the discussion of his findings, the hearing officer noted that Benjamin suffers from a variety of medical conditions, including "autism, attention deficit/hyperactivity disorder, and a significant seizure disorder," which "make it very difficult for the department to determine whether [he] should receive [department] services." The hearing officer explained that the department had found in 2011, 2015, and 2018, that he did not qualify for services primarily on the basis of a disparity in scores on his intelligence tests during the developmental period.¹ The department's psychologists concluded that his other medical conditions were interfering with his cognitive functioning and caused the variations in his test scores. The hearing officer then stated that "one could reasonably conclude that [Benjamin] at the end of the developmental period has an IQ that does qualify him for [department] services." The hearing officer explained: "The psychological report prepared by Dr. Chris Abildgaard ... is a comprehensive and thorough report that finds that [Benjamin's] IQ is 65, which puts him below the level needed to qualify for [department] services. ... The report was prepared on July 14 and 16 in 2016, when [he] was seventeen years, eleven months old and at the end of the developmental period. The examiner in the report states that, ‘there is about a 90 percent chance that his true score is between 62 [and] 69 on any given day.’ He classified his overall performance in the extremely low range, which is equal to 1 percent of people his age." (Citation omitted.)

The hearing officer further explained: "The [Abildgaard] report also summarizes [Benjamin's] performance on the Vineland Adaptive Behavior Scales ... [which is a standardized interview that] was completed by his mother, and his scores were as follows: Communication 64, Daily Living 66, Socialization 65 and a Composite score of 67, which [Abildgaard] found to be consistent with his current cognitive potential. These scores would qualify [Benjamin] for [department] services. A more recent analysis of [Benjamin's] adaptive skills was done on May 8, 2018, by Dr. Margaret Kardos, when [he] was age twenty and outside of the developmental period. Even though outside of the developmental period, this report demonstrates that his adaptive skills have remained consistent from the evaluation done in 2016, which was at the end of the developmental period. The summary in the report finds that [Benjamin's] adaptive skills fall in the extremely low range as reported by both his mother and his teacher. In this report, we have the benefit of his teacher's analysis, which, although [it reflected numbers that were] higher than the scores [recorded] by his mother ... still indicated that [Benjamin] was in the extremely low range. ...

"The most recent intellectual evaluation of [Benjamin] by Apex Educational Solutions was done on July 3, 2018, when [he] was twenty years, four months [old] and outside of the developmental period [(Apex report)]. The report finds that [Benjamin's] General Intellectual Ability was 66 in the very low range. The examiner noted that [Benjamin] worked very hard and exerted himself on all aspects of the test, but his overall level of intellectual functioning fell in the very low range, which is consistent with the [Abildgaard report prepared] when [he] was at the end of the developmental period." The hearing officer determined that the two most recent reports supported the findings in the two reports performed at the end of the developmental period that Benjamin's IQ and his adaptive skills met the requirements of § 1-1g and entitled him to department services.

After reviewing the record, on January 28, 2019, the commissioner issued a final decision (final decision) notifying Denise that he did not concur with the hearing officer's determination that Benjamin is eligible for department services. In his final decision, the commissioner deleted several of the hearing officer's findings of fact and added other findings of fact. Specifically, the commissioner deleted the findings of fact regarding the Abildgaard, Moyer, and Kardos reports, and the Schomer letter. The commissioner added the following findings of fact: "In the cognitive assessment that Dr. Chris Abildgaard completed towards the end of the developmental period when [Benjamin] was seventeen years, eleven months [old], the doctor found that [his] ‘[full-scale IQ] falls within the borderline range and is consistent with his current adaptive functioning.’ ... Significantly, in the assessment, Dr. Abildgaard advised: ‘For a more complete developmental history, the reader is encouraged to reference the psychoeducational evaluation conducted by Dr. Erik Mayville in 2013.’ ... The assessment noted that all but one of the WAIS-IV index scores, the [PSI], fell in the borderline range and that ‘[d]ifficulties in scanning large amounts of visual stimuli and visual motor coordination may have impacted ... [the PSI] results.’ ... The assessment indicated, ‘By parent report in the last six months, [Benjamin] has experienced twenty-six seizures. Several required immediate medical support.’ ... Dr. Abildgaard...