Oller v. Oller-Chiang

• Decision Date: 16 August 1994
• Docket Number: No. 14905,OLLER-CHIANG,14905
• Citation: 646 A.2d 822,230 Conn. 828
• Court: Connecticut Supreme Court
• Parties: Kathleen E. OLLER, v. Carolanne M.et al.

Page 822

646 A.2d 822

230 Conn. 828

Kathleen E. OLLER, v. Carolanne M. OLLER-CHIANG et al.

No. 14905.

Supreme Court of Connecticut.

Argued June 7, 1994.

Decided Aug. 16, 1994.

Lawrence W. Berliner, Hartford, with whom was Michelle F. Murphy, Newtown, for appellant (respondent).

Lawrence D. Church, Norwalk, for appellees (defendants).

Marc Greidinger, Washington, DC, and David C. Shaw, Hartford, filed a brief for the Ass'n for Retarded Citizens of Connecticut, Inc., et al., as amici curiae.

Before PETERS, C.J. and BERDON, NORCOTT, KATZ and PALMER, JJ.

BERDON, Associate Justice.

This appeal presents our first opportunity to consider whether the Guardians of Mentally Retarded Persons Act (act), General Statutes §§ 45a-668 through 45a-684, ¹ mandates the presence in court of the person for whom appointment of a guardian is sought, the respondent, and requires the court to ascertain the respondent's preference as to who should be appointed. More specifically, we address the following principal issues: (1) whether the act requires that the respondent be present at any court hearing concerning the appointment of a guardian; (2) whether the respondent may waive his or her presence and, if so, the necessary requirements for such a waiver; and (3) whether, in determining what is in the best interests of the respondent, the judge must ascertain the respondent's preference as to who should be his or her guardian. ²

In 1989, Anne Oller (defendant) and Walter Oller sought, by application to the Probate Court for the district of Brookfield, to be named limited guardians of their daughter, Kathleen E. Oller, the respondent in this case, in order to make decisions about her "physical and mental care." ³ The respondent is a thirty-one year old woman with mental retardation. The parties agree that she requires a limited guardian to make decisions regarding her medical and dental care and the release of medical records. They disagree, however, over whether the defendant is the proper person to assume such a role. ⁴

The Probate Court approved the application and appointed the defendant limited guardian, and the respondent appealed the decision to the Superior Court. After a trial de novo, ⁵ the Superior Court adopted the findings of the Probate Court, dismissed the appeal and appointed the defendant limited guardian of the respondent, her daughter. The respondent appealed from the judgment of the Superior Court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

The trial in the Superior Court lasted almost an entire day. The respondent was not present, although she had been present when the matter was heard by the Probate Court. At the Probate Court hearing, she had expressed her desire not to have the defendant appointed as her guardian. In the Superior Court, the respondent's attorney attempted to introduce into evidence the statement of her preference that the respondent had made in the Probate Court, but the Superior Court excluded this evidence on the ground that it was hearsay.

It was not until the attorneys offered closing arguments late in the afternoon that the issue of the respondent's presence was raised. In making his summation, the defendant's attorney noted that the respondent herself had not attended the hearing. He argued that the court should infer from the respondent's absence that she would have chosen to have her mother appointed as guardian. In response to a question from the court regarding General Statutes § 45a-675, which provides that "[t]he respondent shall be present at any hearing for his guardianship," the respondent's lead attorney admitted that he did not know why the respondent was not in the courtroom. The respondent's court-appointed attorney then told the court that "it was a professional opinion that she not be exposed to this." Subsequently, the attorneys for both sides purported to waive any requirement that she be present for the hearing:

"The Court: Okay. Well, I just asked if Counsel for the respondent can represent to the Court that they are authorized to waive what seems to be [the] very strong language of [§ 45a-675] and that the [presence] of the respondent is waived as far as any jurisdictional claim ... that the respondent had to be present in order for the Court to respond to the issues in this case.

"Ms. Murphy [respondent's court-appointed attorney]: Yes, Your Honor.

"The Court: Okay. Just so we have it for the record and there's no objection from the defendant as well as far as the waiving the presence of the respondent; is that correct, Mr. Church?

"Mr. Church [defendant's attorney]: There's no objection, I waive the presence of the respondent...." In its oral decision, ⁶ the court gave effect to these waivers by stating that the "Court notes that the parties have waived the presence of the respondent."

In addition, the attorneys raised questions in their summations about whether the preference for a guardian that the respondent had expressed in the Probate Court had been properly excluded from evidence. In his closing argument, the lead attorney for the respondent noted that the court, in selecting a limited guardian, was to be guided by the best interests of the respondent, "including, but not limited to, the preference of the respondent. I might add just [by] way of footnote, there was a preference established for the Probate Court; however, we were unable by virtue of [a] hearsay objection to state that preference." Later, the attorney noted that "[t]he Court is prevented from learning the [respondent's] preference by virtue of a proper hearsay objection and we were prepared to tell the Court what that preference was--Defendant properly objected to that and the Court is not informed by virtue of defendant's objection." In its oral decision, the court noted that "[t]he Court has heard no evidence [of] the preference of the respondent."

On appeal, the parties disagree principally over whether the court had sufficient evidence before it to find that the respondent's mother was a proper person to be named the respondent's limited guardian. At oral argument, however, counsel for the respondent agreed that the issues initially brought to this court's attention by the amici curiae in this case are significant and should be decided. These issues arise under the act and require a consideration of whether: ⁷ (1) the respondent was required to be present at the hearing, absent a valid waiver of that right; (2) the court improperly allowed the attorneys to waive the respondent's right to be present; and (3) the court, after allowing the waiver, failed to ascertain the respondent's preference or attach adequate weight to it. Because of the importance of these issues, and because critical errors in the procedural aspects of the hearing would render irrelevant the substantive sufficiency of the evidence arguments made by the parties, we now address and decide this case on the basis of the issues raised by the amici ⁸ and adopted by the respondent at oral argument.

We review these issues in light of the obvious purpose and policy of the act, which is to provide for the appointment of a guardian to act for the respondent while protecting the constitutional rights of the respondent and ensuring that the court makes its determination based on his or her best interests. General Statutes § 45a-676(f). Guardians appointed by the court, whether limited ⁹ or plenary, ¹⁰ can be vested with substantial powers over a respondent. ¹¹ Therefore, to the extent that such powers are granted, the appointment of a guardian implicates a respondent's fundamental constitutional rights to liberty and privacy.

"Historically, the notion that a declaration of incompetence is in the best interest of the affected individual has resulted in the parens patriae power being exercised in an atmosphere of procedural informality.... Task Panel, President's Commission on Mental Health, Mental Health and Human Rights: Report of the Task Panel on Legal and Ethical Issues (1978), reprinted in 20 Ariz.L.R. 49 (1978).... The beneficial motives behind guardianship obscured the fact that guardianship necessarily entails a deprivation of the fundamental liberty to go unimpeded about one's ordinary affairs.... By contrast, while similar rights are involved in criminal proceedings, there has been no comparable facade of beneficence, and exercise of the police power has always been tempered with strict procedural safeguards." (Citations omitted.) In re Link, 713 S.W.2d 487, 493 (Mo.1986). In 1982, our legislature adopted the act in order to protect the rights of individuals with mental retardation when decisions are to be made that are of vital concern to their lives. The legislative history underscores the legislature's intent. The act was "drafted to protect the rights of the mentally retarded"; Conn. Joint Standing Committee Hearings, Judiciary, 1982 Sess., p. 414, remarks of Linda Dow, assistant to the Probate Court administrator; and its provisions are meant to provide "due process protections to the person [for] whom guardianship is being sought...." Id., p. 351, remarks of Gareth Thorne, commissioner of the department of mental retardation.

I

As noted above, § 45a-675, entitled "Right of respondent to be at hearing," provides in part that a "respondent shall be present at any hearing for his guardianship...." (Emphasis added.) In light of the respondent's absence from the Superior Court proceedings in this case, we must decide whether the legislature's use of the word "shall" in § 45a-675 mandates that the respondent in a guardianship proceeding must be present at any hearing that is held, absent either a valid waiver or a specific finding that attending the hearing "would be seriously detrimental to [the respondent's] emotional or mental condition." General Statutes § 45a-675. ¹² We have noted in past...