In re Jason B

Conn. App.

August 2012



In this termination of parental rights appeal, the respondent mother claimed that the court erred by taking an adverse inference from her failure to testify without having first provided prior notice. Secondarily, the respondent claimed that the court’s subsequent articulation as to this matter was an attempt to correct the error and re-define the court’s original judgment, necessitating that the appellate court remand the matter for a new trial. The appellate court disagreed with the respondent and affirmed the judgment of the trial court.

The respondent claimed that the court’s statement that “[s]ince [the respondent] did not testify there was no evidence presented to contradict the representations made in the [s]ocial [s]tudy” indicates that the court drew an adverse inference based on her failure to testify.  The appellate court agreed that while that statement, read in isolation, could be problematic, the memorandum, read as a whole, indicated that no adverse inference was drawn. Specifically, the court’s memorandum of decision stated that the respondent ‘‘elected not to testify and no adverse inference need be drawn.’’ The court’s subsequent articulation further stated that it did ‘‘not presume the evidence to be proven or presumed truthful . . . because the respondent did not testify.’’ Accordingly,  per the court’s judgment, the evidence submitted by DCF was given ‘‘great weight’’ because it was found by the court to be both credible and wholly uncontested by the respondent.

The court further held that the court’s articulation was not inconsistent with its original memorandum of decision (a determination which would require a new trial; see Lusa v. Grunberg, 101 Conn. App. 739,

743, 923 A.2d 795 (2007).  The appellate court’s conclusion that the original decision did not rest on an adverse inference precluded the respondent’s alternate claim.


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