In re Josiah D.

In re Josiah D. – AC44096 (January 2021)[1]

Termination of Parental Rights, Adverse Inference Drawn from Decision Not to Testify

TAKEAWAY: Court is not required to affirmatively notify a parent that it would be drawing an adverse inference from his/her/their decision not to testify, above & beyond the notification given at the start of trial that it may do so.

Father appealed the termination of his parental rights with respect to his two minor children. In doing so, he claimed that the court committed reversible error by failing to notify him that it would be drawing an adverse inference from his decision not to testify.  He suggested the Appeals Court should exercise its supervisory authority over the administration of justice to adopt an advisement requiring the trial court to affirmatively notify parents that it would be drawing an adverse inference upon their decision not to testify.

The Appeals Court held that trial court properly notified father that it may draw an adverse inference from his decision not to testify: prior to the presentation of evidence, the court notified him of his rights pursuant to In re Yasiel R. (317 Conn. 794), which included the right to remain silent and the notice required to a parent that the court may draw an adverse inference from his failure to testify.  It held that this was consistent with CT Supreme Court’s ruling that the notice be given at the very start of the termination trial, before a decision as to whether to challenge evidence has been communicated to the court, and to all parents involved in a termination trial, not just to those parents whose attorneys have made a tactical decision not to contest evidence.  Contrary to the father’s claim, the Appeals Court found that the rules do not require a second notice to the parent that the court would be drawing an adverse inference from their failure to testify, as notice to a parent has already been given that the court may do so, and a notice provided at the start of the trial is the least coercive manner of advising a parent of his or her right to remain silent and the possible consequences of doing so.

Furthermore, in this particular case, the Appeals Court found that even if it were assumed that the court was required to affirmatively notify the father that it would be drawing an adverse inference, the notice given at the beginning of the trial was proper, and any impropriety was harmless in light of the court’s detailed findings, which dispelled any notion that the court’s drawing of an adverse inference from the father’s decision not to testify was determinative of the court’s decision to TPR.

The Appeals Court declined to exercise its supervisory authority over the administration of justice to require a court in a TPR trial to affirmatively notify a parent that it would be drawing an adverse inference from the parent’s decision not to testify, beyond what is required by § 35a-7A.

[1] https://jud.ct.gov/external/supapp/Cases/AROap/AP202/202AP81.pdf