In re Nicholas R.

Connecticut Appellate Court

92 Conn. App. 316 (2005)

November 15, 2005


In a short but interesting case, the appellate court affirmed an order of temporary custody (“OTC”) obtained by the Department of Children and Families (“Department”) in September 2004. The facts of the case are relatively straight forward – but the language used by the appellate court regarding the nature of consent, and the evidentiary consequences that result from forced or coerced circumstances in child protection matters may resonate in future cases.

On September 22, 2004, Nicholas’ parents brought him to the Department of Social Services (“DSS”) while they applied for public assistance benefits. While at DSS, another DSS client alleged that Nicholas’ parents had shaken and struck the ten-week old baby on the face and in the back while in the reception area. Events unfolded – and a Department social worker arrived at the DSS office to investigate the allegation. Upon arrival, the Department social worker requested that Nicholas be medically cleared by either the child’s pediatrician or an emergency room physician. Unable to reach their child’s pediatrician, the parents suggested they go to the emergency room, where an examination revealed no head trauma, but a fracture of Nicholas’ left arm at least a few weeks old. The Department immediately invoked a ninety-six hour hold, and a subsequently sought and obtained the OTC.

On appeal, the father claimed that Nicholas’ mom was forced to obtain a medical examination in order for the Department to establish probable cause to invoke a ninety six hour hold pursuant to Conn. Gen. Stat. § 17a-101g, and without the coerced exam, the Department would not have had probable cause. Following that path, Nicholas’ father claimed that the court abused its discretion in considering the medical evidence as it was obtained without probable cause.

The court did not find his argument compelling, holding instead that based on the objective standard used to judge consent, Nicholas’ mother did not demonstrate that she felt coerced or forced into bringing Nicholas to the hospital for the examination. See State v. Yusef, 70Conn. App. 694, cert denied, 261 Conn. 921 (2002). The court then indicated that as this was not a criminal trial, the “strict rules of evidence” need not apply. Since child protection proceedings are civil, and not “quasi criminal” in nature, see In re Samantha C, 268 Conn. 614 (2004), the court was charged with the responsibility of looking at the well-being of the child, and the exclusionary rule did not apply. Because the exclusionary rule is not used in a non-criminal case – the fruits of the poisonous tree doctrine did not apply to the evidence of the arm fracture. And, the court opined in an interesting sidelight, because this was a civil court, even if the parents had been forced to seek a medical examination for Nicholas, the exclusionary rule would not have applied and the evidence would have been admissible. As a result, the court upheld the OTC.

This case may be accessed by going to the Judicial Branch website

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