In re Elijah J.

In re Elijah J
Conn. App.
February 22, 2013

Termination of Parental Rights / Standing Silent / Adverse Inference

Sheldon, J.

The key question in this termination of parental rights appeal was whether the trial court improperly construed the non-custodial, incarcerated father’s prior decision to “stand silent” at  the neglect phase of the proceeding as a tacit admission of the state’s allegations against him.  The appellate court deemed this question an issue of first impression and exercised plenary review.

The appellate court determined that, consistent with the Supreme Court’s previous decision in In re Samantha C, a court may take an adverse inference from a parent’s decision to “stand silent” so long as the parent is appropriately advised.  A stance of silence, unlike a plea, is not an admission and cannot be used as evidence of a material fact. It can however permit the court to determine that a fact already in evidence is more or less likely because of the party’s silence.  Here, the appellate court determined that the trial court improperly construed the respondent’s earlier silence as a “tacit admission” of the allegations contained in the neglect petition.  Such a determination by the trial court, if relied upon materially as a basis for deciding the ultimate issue of the termination case, would constitute reversible error.  Here, however, the appellate court determined that the error was harmless and simply an incorrect summary of the meaning of the respondent’s earlier stance.  The court had ample evidence that it relied on when it found that the state had made reasonable efforts to reunify the family and that the foster, post incarceration had failed to make consistent and reasonable efforts to rehabilitate.

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