March 29, 2022

IN RE IVORY W. ET AL. (March 2022; SC 20624)

Mother appealed the termination of her parental rights with respect to her minor children; DCF had filed petitions to terminate her parental rights after she admitted to sending sexually explicit photographs of one of the children to several people.

During the proceedings, Mother filed four separate motions to continue the termination proceedings so that she could testify in her own defense without jeopardizing her Fifth Amendment right to avoid incriminating herself in connection with a pending federal criminal proceeding related to her distribution of the photographs. The trial court granted the first three motions but denied the fourth. Following the termination trial, at which Mother did not testify, and the trial court did not draw any adverse inference from her silence, the court rendered judgments terminating her parental rights.

In its decision, the trial court found that DCF proved by clear and convincing evidence that Mother had failed to achieve sufficient personal rehabilitation, as required by the applicable statute. With respect to the petition related to one of the children, the court found that, as the result of Mother’s conduct in distributing the sexually explicit photographs, the child had been denied the care, guidance, or control necessary for that child’s well-being for purposes of the governing statute. The court further found that DCF had established that the factors set forth in § 17a-112 (k) favored terminating Mother’s parental rights, and that doing so was in the children’s best interests.

On appeal, Mother claimed that (1) her right to due process was violated when the trial court denied her fourth motion for a continuance pending the conclusion of the federal criminal proceeding; (2) if the court found that the denial of her continuance was constitutional, the denial was an abuse of discretion; and (3) if this court determines that the denial of her continuance was neither unconstitutional nor an abuse of discretion, it should exercise its supervisory authority to direct our trial courts to grant motions for a continuance of TPR proceedings whenever related criminal proceedings against the parent are prevailing.

Here, the Supreme Court held:

(1) Mother was not deprived of her due process rights under the federal and state constitutions by virtue of the trial court’s denial of her motion for a continuance of the termination proceeding.  Specifically:

  1. The trial court correctly determined that it was not required to grant Mother a continuance under the Due Process Clause of the Fourteenth Amendment. The court’s analysis followed the ‘‘penalty’’ cases analytical framework, in which certain penalties for remaining silent are severe enough to constitute compulsion to speak and violate the Fifth Amendment privilege against self-incrimination. In the present case, because the trial court’s judgments terminating her parental rights were based exclusively on DCF’s clear and convincing evidence that, with respect to both children, Mother had failed to rehabilitate and that, with respect to the one child specifically, she had been denied the care, guidance, or control necessary for her well-being, and Mother was not prevented from presenting evidence in her own defense, Mother did not suffer an automatic severe penalty or an adverse inference penalty. Moreover, Mother did not cite to any case in which a court had concluded that, when the interests at stake in a civil proceeding are sufficiently important, the frustration of an individual’s desire to testify in his or her own defense as a result of the individual’s choice to invoke the Fifth Amendment is a sufficiently severe penalty to constitute compulsion under the Fifth Amendment.
  2. Mother could not prevail on her claim that the trial court had violated her due process rights under the state constitution when it denied her motion for a continuance. This Court considered the factors set forth in State v. Geisler (222 Conn. 672) for construing state constitutional provisions, and concluded that none of those factors supported Mother’s claim. Federal and state case law did not favor Mother’s position; Mother had not explained why, under the specific circumstances of this case, the text of Article 1, §§ 8 and 10, warranted a broader reading; it was against public policy to allow children to remain in foster care for lengthy periods without achieving permanency; and, although the fundamental right of parents to raise their children has deep roots in Connecticut history and is entitled to heightened due process protections, it does not necessarily follow that the state constitution provides broader protections with respect to the right to family integrity than the federal constitution.

(2) The trial court did not abuse its discretion in denying Mother’s continuance.  Although granting the continuance would have allowed Mother to testify in her own defense, that consideration had to be weighed against the countervailing facts that she had previously filed three motions for a continuance, which the trial court granted.  The TPR trial already had been delayed for 18 months, and Mother sought an indefinite postponement, both of which impacted the children’s important need for permanency. The Court here found that a sense of permanency is crucial to a child’s welfare, and delaying the trial indefinitely would have resulted in keeping Mother’s very young children in a state of limbo indefinitely.

Furthermore, the Court here found it was reasonable for the trial court to consider the seriousness of the neglect allegations and the evidence supporting them in determining whether to grant the motion for a continuance, and, without any proof as to the substance of the testimony that Mother would have presented if a continuance were granted, or any claim that her testimony could affect the outcome of the TPR proceeding, the trial court was not required to grant the motion.

(3) This court declined to exercise its supervisory authority over the administration of justice to require trial courts to grant a respondent’s motion for a continuance of a TPR proceeding whenever the respondent has invoked their Fifth Amendment privilege against self-incrimination in connection with a related criminal proceeding.  It held that such a rule is not required to ensure the fairness and integrity of the judicial system and would deprive trial courts of their ability to consider the fairness of their rulings by eliminating their discretion.