In re Samantha C.

Connecticut Supreme Court

268 Conn. 614

April 27, 2004


In a watershed decision, the Connecticut Supreme Court tackled the issue of whether a trial court may allow an adverse inference to be drawn against respondents, without prior notice, for their failure to testify in a proceeding where the state sought to terminate their parental rights. In a lengthy and thoughtful decision, the Court found that a trial court is NOT precluded from drawing an inference from respondents failure to testify, but the court must give respondents prior notice that if they elect not to testify a the termination proceeding, an adverse inference would be drawn against them.

Samantha was born on April 24, 1996. The Department of Children and Families (“Department”) began assisting Samantha’s parents in early 1997 due to frequent reports of domestic disputes. In December 1997, the Department removed Samantha from her home, and forged ahead by filing a neglect petition, which was adjudicated in April 1999. The Department filed its first termination petition in February 2000, but withdrew the petition due to parental effort and compliance in April 2000. After an especially troubling incident in January 2001, the Department filed its second termination petition in February 2001.

At the TPR trial, the court found that Samantha’s parents had failed to rehabilitate, and inferred from their election not to testify that they continued to have a volatile relationship and were unable to care for Samantha’s needs. The court then found that it was in Samantha’s best interest that the parental rights be terminated.

The Supreme Court agreed with the trial court’s findings that the Department proved by clear and convincing that Samantha’s parents had failed to achieve sufficient personal rehabilitation as they could not prove that the finding was “clearly erroneous” pursuant to Conn. Gen. Stat. § 17a-112(j)(3)(B). In addition, the Court summarily affirmed the trial court’s finding that the Department had made reasonable efforts to reunify the family pursuant to § 17a-112(j)(1) mostly based on the fact that Samantha had spent an exorbitant amount of time in foster care.

The critical issues analyzed in the decision revolved around the adverse inference drawn by the trial court after Samantha’s parents refused to testify at the termination trial. The key statutory provision under the microscope is Practice Book § 34-1(f), which provides that “[n]o parent … shall be compelled to testify if the testimony might tend … to establish the validity of the facts alleged in the petition.” The respondents analogized this provision to the Fifth Amendment to the U.S. constitution’s privilege against self-incrimination, which also forbids the drawing of such an adverse inference against the criminal defendant who refuses to testify at trial. The Department argued conversely — that the statute merely prohibits the state from calling a parent to testify in a termination proceeding in an effort to prove the facts alleged in the petition.

The court tackled this complex issue by reiterating the general rule that after a prima facie case is established, an adverse inference may be drawn against a party for her failure to testify, unless the party is entitled to rely upon one of the few exceptional privileges that carry with it a protection from adverse inferences. Here, the § 34-1(f) protection does not preclude the trial court from drawing an adverse inference from the respondent parents’ failure to testify based on the statutory language, the commentary to the practice rule that succeeded § 34-1(f), and the policies of the statutes that § 34-1(f) was adopted to implement.

The respondents’ claim that the trial court was required to have given prior notice of its intent to draw an adverse inference resonated with the court, as it agreed that the language of Practice Book § 34-1(a) strongly suggests that it is incumbent upon the trial court not only to state expressly that parents have a right to remain silent, but also to explain, to some extent the parameters of that right. Here, Samantha’s parents were not advised of the right pursuant to § 34-1(a), and the failure to do so tainted the court’s decision, which was clearly based, at least in part, on the adverse inference. Because the court could not determine whether the trial court would have ruled the way it did in the absence of such an inference, the court reversed the judgment and remanded it to the trial court for a new termination proceeding.

The case, which contains a lengthy analysis of the relationship of the Practice Book sections to the overlaying statutes and cases (both state and federal) is available on-line at the Judicial Branch web page by going to

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