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In a
short but interesting case, the appellate court affirmed an order
of temporary custody ("OTC") obtained by the Department of Children
and Families ("Department") in September 2004. The facts of the
case are relatively straight forward - but the language used by
the appellate court regarding the nature of consent, and the evidentiary
consequences that result from forced or coerced circumstances in
child protection matters may resonate in future cases.
On September
22, 2004, Nicholas' parents brought him to the Department of Social
Services ("DSS") while they applied for public assistance benefits.
While at DSS, another DSS client alleged that Nicholas' parents
had shaken and struck the ten-week old baby on the face and in the
back while in the reception area. Events unfolded - and a Department
social worker arrived at the DSS office to investigate the allegation.
Upon arrival, the Department social worker requested that Nicholas
be medically cleared by either the child's pediatrician or an emergency
room physician. Unable to reach their child's pediatrician, the
parents suggested they go to the emergency room, where an examination
revealed no head trauma, but a fracture of Nicholas' left arm at
least a few weeks old. The Department immediately invoked a ninety-six
hour hold, and a subsequently sought and obtained the OTC.
On appeal,
the father claimed that Nicholas' mom was forced to obtain a medical
examination in order for the Department to establish probable cause
to invoke a ninety six hour hold pursuant to Conn. Gen. Stat. §
17a-101g, and without the coerced exam, the Department would not
have had probable cause. Following that path, Nicholas' father claimed
that the court abused its discretion in considering the medical
evidence as it was obtained without probable cause.
The court
did not find his argument compelling, holding instead that based
on the objective standard used to judge consent, Nicholas' mother
did not demonstrate that she felt coerced or forced into bringing
Nicholas to the hospital for the examination. See State v. Yusef,
70Conn. App. 694, cert denied, 261 Conn. 921 (2002). The court then
indicated that as this was not a criminal trial, the "strict rules
of evidence" need not apply. Since child protection proceedings
are civil, and not "quasi criminal" in nature, see In
re Samantha C, 268 Conn. 614 (2004), the court was charged with
the responsibility of looking at the well-being of the child, and
the exclusionary rule did not apply. Because the exclusionary rule
is not used in a non-criminal case - the fruits of the poisonous
tree doctrine did not apply to the evidence of the arm fracture.
And, the court opined in an interesting sidelight, because this
was a civil court, even if the parents had been forced to seek a
medical examination for Nicholas, the exclusionary rule would not
have applied and the evidence would have been admissible. As a result,
the court upheld the OTC.
This
case may be accessed by going to the Judicial Branch website at
www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92ap33.pdf
(JES) 11/21/05
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