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In a
watershed decision, the Connecticut Supreme Court tackled the issue
of whether a trial court may allow an adverse inference to be drawn
against respondents, without prior notice, for their failure to
testify in a proceeding where the state sought to terminate their
parental rights. In a lengthy and thoughtful decision, the Court
found that a trial court is NOT precluded from drawing an inference
from respondents failure to testify, but the court must give respondents
prior notice that if they elect not to testify a the termination
proceeding, an adverse inference would be drawn against them.
Samantha
was born on April 24, 1996. The Department of Children and Families
("Department") began assisting Samantha's parents in early 1997
due to frequent reports of domestic disputes. In December 1997,
the Department removed Samantha from her home, and forged ahead
by filing a neglect petition, which was adjudicated in April 1999.
The Department filed its first termination petition in February
2000, but withdrew the petition due to parental effort and compliance
in April 2000. After an especially troubling incident in January
2001, the Department filed its second termination petition in February
2001.
At the
TPR trial, the court found that Samantha's parents had failed to
rehabilitate, and inferred from their election not to testify that
they continued to have a volatile relationship and were unable to
care for Samantha's needs. The court then found that it was in Samantha's
best interest that the parental rights be terminated.
The
Supreme Court agreed with the trial court's findings that the Department
proved by clear and convincing that Samantha's parents had failed
to achieve sufficient personal rehabilitation as they could not
prove that the finding was "clearly erroneous" pursuant to Conn.
Gen. Stat. § 17a-112(j)(3)(B). In addition, the Court summarily
affirmed the trial court's finding that the Department had made
reasonable efforts to reunify the family pursuant to § 17a-112(j)(1)
mostly based on the fact that Samantha had spent an exorbitant amount
of time in foster care.
The
critical issues analyzed in the decision revolved around the adverse
inference drawn by the trial court after Samantha's parents refused
to testify at the termination trial. The key statutory provision
under the microscope is Practice Book § 34-1(f), which provides
that "[n]o parent … shall be compelled to testify if the testimony
might tend ... to establish the validity of the facts alleged in
the petition." The respondents analogized this provision to the
Fifth Amendment to the U.S. constitution's privilege against self-incrimination,
which also forbids the drawing of such an adverse inference against
the criminal defendant who refuses to testify at trial. The Department
argued conversely -- that the statute merely prohibits the state
from calling a parent to testify in a termination proceeding in
an effort to prove the facts alleged in the petition.
The
court tackled this complex issue by reiterating the general rule
that after a prima facie case is established, an adverse inference
may be drawn against a party for her failure to testify, unless
the party is entitled to rely upon one of the few exceptional privileges
that carry with it a protection from adverse inferences. Here, the
§ 34-1(f) protection does not preclude the trial court from drawing
an adverse inference from the respondent parents' failure to testify
based on the statutory language, the commentary to the practice
rule that succeeded § 34-1(f), and the policies of the statutes
that § 34-1(f) was adopted to implement.
The
respondents' claim that the trial court was required to have given
prior notice of its intent to draw an adverse inference resonated
with the court, as it agreed that the language of Practice Book
§ 34-1(a) strongly suggests that it is incumbent upon the trial
court not only to state expressly that parents have a right to remain
silent, but also to explain, to some extent the parameters of that
right. Here, Samantha's parents were not advised of the right pursuant
to § 34-1(a), and the failure to do so tainted the court's decision,
which was clearly based, at least in part, on the adverse inference.
Because the court could not determine whether the trial court would
have ruled the way it did in the absence of such an inference, the
court reversed the judgment and remanded it to the trial court for
a new termination proceeding.
The
case, which contains a lengthy analysis of the relationship of the
Practice Book sections to the overlaying statutes and cases (both
state and federal) is available on-line at the Judicial Branch web
page by going to http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR268/268cr66.pdf
(JES 7/04)
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