MEMORANDUM

Subject:
May the court draw adverse inferences from a parents invocation of the Fifth Amendment privilege against self-incrimination in Child Protection proceedings?

Questions Presented
1. May the court draw adverse inferences from a parents failure to testify in a Neglect or Termination of Parental Rights proceeding? 2. May the court draw adverse inferences from a parents refusal to respond to discovery requests in a Neglect or Termination of Parental Rights proceeding?

Discussion
1. May the court draw adverse inferences from a parents failure to testify in a Neglect or Termination of Parental Rights proceeding? Although literally speaking the Fifth Amendment privilege against selfincrimination applies only to criminal proceedings, the privilege has been construed to extend to witnesses in civil proceedings where the answer to interrogation may subject the witness to criminal prosecution. See Whitaker v. Prince George's County, 514 A.2d 4 (Md. 1986) as cited in Robinson v. Robinson, 615 A.2d 1190 (Md. 1992). Thus, in a civil case the Fifth Amendment protects a witness from being required to make disclosure that could incriminate him in a later criminal prosecution. See Whitaker v. Prince George's County, 514 A.2d 4 (Md. 1986) as cited in Robinson, 615 A.2d at 1193. Case law has repeatedly emphasized that a [Child Protection] proceeding is civil in nature. See Matter of Commissioner of Social Services of City of New York [Denise R.], 219 AD2d 715 [2d Dept 1995]; Matter of Randy A., 248 AD2d 838 [3d Dept 1998], both suggesting that a Child

Neglect proceeding under New York Family Court Act article 10 is civil in nature, as cited in Matter of David E., 176 Misc. 2d 363, 672 N.Y.S.2d 659 (1998). Thus, the Fifth Amendment privilege against self-incrimination applies to witnesses in Child Protection proceedings. The Fifth Amendment privilege is not automatically implicated every time the choice is made not to testify. In re J.W., 2003 D.C. App. LEXIS 697, 837 A.2d 40 (2003). Appellate review arises not from the existence of the privilege, but from its invocation. Id. at 20, 837 A.2d at 48. Recognizing that in a Neglect proceeding, a parent is not a criminal defendant, but a potential witness, the District of Columbia Court of Appeals has said that the Fifth Amendment privilege enjoyed by a witness is narrower than that of a defendant. See Littlejohn v. United States, 705 A.2d 1077 (D.C. 1997) (quoting Harris v. United States, 614 A.2d 1277 (D.C. 1992)) as cited in J.W. at 20, 837 A.2d at 48. Unlike the criminal defendant, a witness may not refuse to take the witness stand, but rather, must invoke the privilege as to those specific questions to which his answers would incriminate him. See Littlejohn v. United States, 705 A.2d 1077 (D.C. 1997) (quoting Wilson v. United States, 558 A.2d 1135 (D.C. 1989)) as cited in J.W. at 20, 837 A.2d at 48. The court must then resolve the Fifth Amendment claim as to the particular question. In J.W., the father claimed that the Neglect proceeding violated his right to due process of law. He argued that because he chose to exercise his Fifth Amendment privilege by not testifying in the Neglect proceeding so as to prevent the government from using his testimony in the pending criminal appeal, he was unable to tell his side of the story at the Neglect hearing, and therefore was effectively punished for exercising his Fifth Amendment right. The court disagreed, stating as follows: The Fifth Amendment

privilege is not self-executing. Rather, the privilege must be [invoked] in a manner that fairly brings it to the attention of the trial court, and the court must then resolve it. See Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358 (1980) as cited in J.W. at 20, 837 A.2d at 48. The court held that the father was never punished for exercising his Fifth Amendment privilege as there was no evidence that he invoked the privilege: By virtue of [the fathers] request for a stipulated trial, no incriminating question was ever posedthat would have afforded [the father] even the opportunity to invoke the privileges protection. J.W., 2003 D.C. App. LEXIS 697 at 20. The court further held that even if the record could be read to support the fathers invocation of the Fifth Amendment privilege, it was never tested in the trial court. See Littlejohn, 705 A.2d at 1083 (stating that when a witness invokes the Fifth Amendment privilege, the court shouldrule on the claim of privilege one question at a time) (quoting Harris, 614 A.2d at 1282) as cited in J.W. at 20, 837 A.2d at 48. Concluding that such determinations in the trial court are necessary predicates to effective appellate review of a witness's Fifth Amendment claim, the court found that the assigned error was not properly preserved. For effective appellate review to occur, then, the parent must not only invoke the privilege as to the specific question to which his answer would incriminate him, but the trial court must resolve the Fifth Amendment claim as to the particular question. Case law suggests that an adverse inference may be drawn from a witnesss failure to testify in a civil proceeding. More specifically, an adverse inference may be drawn from a parents failure to testify in a Child Protection proceeding. As to civil proceedings generally, some cases suggest that the witnesss failure to testify should only be used as a factor, to be weighed with all other relevant evidence, in determining liability. Other cases

seem to suggest that the fact-finder is limited to the adverse inference that can reasonably be drawn from the witnesss failure to testify. As to Child Protection proceedings specifically, case law suggests that the trial court must give the parent prior notice of its intent to draw an adverse inference from the parents failure to testify. Again, an adverse inference may be drawn from a witnesss failure to testify in a civil proceeding. The United States Supreme Courts conclusion in Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Fifth Amendment does not preclude the inference where the privilege is claimed by a party to a civil cause. See 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961) as cited in Baxter at 318. In Baxter, a prison inmate was informed that he had a right to remain silent during his disciplinary hearing but that if he did so his silence could be held against him. On the basis of the hearing, at which he remained silent, the inmate was placed in punitive segregation for 30 days. The inmate filed an action for damages and injunctive relief, claiming that the disciplinary hearing violated his right to due process of law. The court of appeals concluded that the Fifth Amendment forbids drawing adverse inferences against an inmate from his failure to testify. In reversing the court of appeals, the Court held that prison officials could draw reasonable inferences from an inmates silence given the civil nature of the proceedings. The Court reasoned that since prison disciplinary hearings were not criminal proceedings, prisoners had fewer rights, and the needs of the prisons had to be balanced against any of the inmates rights: In criminal cases, where the stakes are higher and the State's sole interest is to convict, [the judge and

prosecutor are prohibited] from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt. Disciplinary proceedings in state prisons, however, involve the correctional process and important state interests other than conviction for crime. Baxter, 425 U.S. at 318. In ruling that an adverse inference was allowed in civil cases, the Court clarified the extent to which an inference could be drawn by stating that a prison inmateelecting to remain silent during his disciplinary hearingis not in consequence of his silence automatically found guilty of the infraction with which he has been charged. Baxter, 425 U.S. at 317. The court continued, [D]isciplinary decisions must be based on substantial evidence manifested in the record of the disciplinary proceeding. See Morris v. Travisono, 310 F. Supp. 857 (RI 1970) as cited in Baxter, 425 U.S. at 317. Thus, the Court held that while an adverse inference was allowed, the fact that the witness failed to testify was only to be used as a factor, to be weighed with all other relevant evidence, in determining liability. The Court of Appeals of Maryland in Robinson agreed that the court may properly draw an adverse inference against a witness for his or her failure to testify in a civil proceeding. Like the court in Baxter, however, the court in Robinson placed a limitation, by limiting the trier of fact to the adverse inference that could reasonably be drawn from the witnesss failure to testify. In Robinson, the husbands attorney cross-examined the wife about an extramarital relationship during the couples child custody proceedings. The wife refused to answer the questions, exercising her Fifth Amendment privilege against selfincrimination. The trial court awarded custody to the wife, and the husband appealed. The husband claimed that the negative inference that could be drawn from the wifes refusal to

answer questions regarding her adultery established not only her commission of adultery, but also her unfitness for custody. See Robinson v. Robinson, 615 A.2d 1190 (Md. 1992) as cited in Long v. Long, 785 A.2d 818 (Md. App. 2001). The court disagreed, holding that the only proper inference produced by the wifes silence was that she had committed adultery. The court reasoned that while the fact finder may draw an adverse inference from an adverse partys refusal to answer a question posed during that party's testimony, the adverse party's refusal, taken alone, does not relieve a party of his or her burden of proof on the issue that was the subject of the question. See Whitaker v. Prince George's County, 514 A.2d 4 (Md. 1986) as cited in Robinson, 615 A.2d at 1194. The court went on to say that [while] the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness [for custody] arises from it; rather, it should be weighed, along with all otherfactors, only insofar as it affects the childs welfare. Robinson, 615 A.2d at 1194. Thus, the court held that although the trier of fact may draw an adverse inference, the trier of fact is limited by the adverse inference that can reasonably be drawn from the witnesss failure to testify. The Court of Special Appeals of Maryland in Long similarly agreed that the Fifth Amendment does not preclude adverse inferences where the privilege is claimed by a party to a civil action. Like the court in Robinson, however, the court in Long limited the factfinder to the adverse inference that could reasonably be drawn from the witnesss failure to testify. In Long, the husband, during the couples divorce proceedings, refused to answer a special masters questions about tax return filings on grounds of self-incrimination. The trial court concluded that the husband had voluntarily impoverished himself and/or failed to

disclose the full amount of his income. On appeal, the husband argued that the trial court could permissibly infer from the invocation of the Fifth Amendment that he had not filed his tax returns, but that the court could draw no other inference. The court agreed, and remanded for the trial court to clarify exactly what evidence it relied on in reaching its conclusion. The court held that although the trial court was entitled to draw an adverse inference against the husband when he invoked the Fifth Amendment in response to questions about the status of his tax returns, the trial court could not penalize the exercise of the privilege. See Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) as cited in Long at 822. The court continued, A court may not find voluntary impoverishment based solely on anexercise of the Fifth Amendment privilege without supporting evidence. Similarly, a court may not findthat an individualsought to keep the full amount of hisincome from being disclosed without supporting evidence. Long, 785 A.2d at 822. Thus, although it found that the fact-finder may draw an adverse inference against a witness for his or her failure to testify in a civil proceeding, the court limited the fact-finder to the adverse inference that could reasonably be drawn from the witnesss failure to testify. Additionally, the court found that a partys privileged silence alone is insufficient to permit the fact-finder in a civil case to determine liability. See Kramer v. Levitt, 558 A.2d 760 (Md. App. 1989) as cited in Long at 822. New York law, too, allows for appropriate adverse inferences to be drawn against a witness because of his or her failure to testify in a civil proceeding. Matter of the Commissioner of Social Services v. Philip De G., 59 N.Y.2d 137, 450 N.E.2d 681, 463 N.Y.S.2d 761 (1983). In Philip De G., the family court adjudged respondent to be the father of a child born out of wedlock, and directed him to pay weekly support. The

appellate division reversed, finding the evidence of paternity to be insufficient. In reversing the appellate division, the court held that the family court could consider, in assessing the strength of the mothers evidence, that respondent did not testify, and draw appropriate inferences from his failure to do so. The court stated, Filiation proceedings are civil proceedings, andin civil proceedings an [adverse] inference may be drawn against the witness because of his failure to testify. Philip De G., 450 N.E.2d at 682. The court went on to say, however, that the failure of [the witness] to testify does not permit the trier of fact to speculate about what his testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him that the opposing evidence in the record permits. Philip De G., 450 N.E.2d at 682. Thus, the court held that although the fact-finder does not have to draw an adverse inference against the witness, the fact-finder may choose to do so. As stated earlier, an adverse inference may be drawn from a parents failure to testify in a Child Protection proceeding. Under Connecticut law, however, the trial court is required to give the parents prior notice of its intent to draw such an inference. In re Samantha C., 847 A.2d 883 (Conn. 2004). In Samantha C., the parents, both of whom were present at the Termination of Parental Rights proceeding, elected not to testify. The trial court granted the Commissioners petition. In doing so, it expressly drew an adverse inference against the parents for their failure to testify at the Termination proceeding: The court infers from the [parents'] silence that they are continuing their volatile relationship and are unable to care for Samantha's needs. Samantha C., 847 A.2d 883. On appeal, the parents claimed that because the Fifth Amendment forbids an adverse inference from being drawn against a criminal defendant for electing not to testify

at trial, Connecticut law similarly forbade an adverse inference from being drawn against them in the Termination proceeding. Id. at 897. The Commissioner argued that the correct interpretation of Connecticut law was that although a parent had a right to refuse to testify in a Termination proceeding, the Commissioner may, as in any other civil proceeding, place a cost on a parent's assertion of that right, namely, allowing the trier of fact to draw an adverse inference. Id. at 897. The court agreed with the Commissioner, holding that the trier of fact is entitled to draw all fair and reasonable inferences from the facts and circumstances [that] it finds established by the evidence, which consist both of what was said, and what naturally would have been. See State v. McDonough, 29 A.2d 582 (Conn. 1942) as cited in Samantha C., 847 A.2d at 898. In holding this, however, the court made it clear that an adverse inferencedoes not support proof of any particular fact; rather, it may be used only to weigh facts already in evidence. See State v. McDonough, 29 A.2d 582 (Conn. 1942) as cited in Samantha C., 847 A.2d at 899. The court further held that should a trial court be inclined to draw an adverse inference against a parent for his or her failure to testify in a Termination proceeding, it is incumbent upon the court to advise the parent accordingly. Id. at 915. The court relied on language in Conn. Gen. Prac. Book, 2001, 34-1(a), which provides: The judicial authority shall advise and explain to the parentstheir right to silenceprior to commencement of any proceeding. In this context, advise means towarn, as in to advise of the consequences, and explain means to makeunderstandable, as in to make intelligible what is not immediately obvious or entirely known. Samantha C., 847 A.2d at 915. Thus, the court interpreted 34-1(a) to suggest that it is incumbent upon the

trial court, not only to state that parents have a right to silence, but also to explain, to some extent, the parameters of that right. Id. at 915. As the trial court had failed to notify the parents of its intent to draw an adverse inference, the court remanded for a new Termination proceeding. 2. May the court draw adverse inferences from a parents refusal to respond to discovery requests in a Neglect or Termination of Parental Rights proceeding? As previously stated, the Fifth Amendment privilege against self-incrimination may be properly asserted by parties or witnesses in civil proceedings. See McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924) as cited in Kramer at 763. The privilege protects persons against being forced to make incriminating disclosures at any stage of the proceeding if they could not be compelled to make such disclosures as a witness at trial. See National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th Cir.1983) as cited in Kramer, 558 A.2d at 763. The privilege therefore applies not only at trial, but at the discovery stage of civil proceedings as well. See Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970) as cited in Kramer at 763. As stated, a Child Protection proceeding is civil in nature. See Matter of Commissioner of Social Services of City of New York [Denise R.], 219 AD2d 715 [2d Dept 1995]; Matter of Randy A., 248 AD2d 838 [3d Dept 1998] as cited in Matter of David E., 176 Misc. 2d 363. Thus, the privilege applies to witnesses at the discovery stage of any Child Protection proceeding. Case law suggests that an adverse inference may be drawn from a witnesss refusal to respond to discovery requests in a civil proceeding. While I have not found any case law to specifically suggest that an adverse inference may be drawn from a parents refusal to respond to discovery requests in a Child Protection proceeding, case law in the child

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protection area suggests on what grounds a court may compel a parent to comply with discovery requests. It is my assertion that should the court have a proper basis for not compelling a parent to comply with discovery requests, i.e. a valid Fifth Amendment invocation, other case law can be used to imply that an adverse inference may be drawn from the parents refusal to respond to the discovery requests (since a Child Protection proceeding is a civil proceeding, and a parent in a Child Protection proceeding is a potential witness). Again, an adverse inference may be drawn from a witnesss refusal to respond to discovery requests in a civil proceeding. For instance, the court in Kramer ruled that an adverse inference could be drawn from a witnesss refusal to respond to a request for admissions. In Kramer, the investor moved for judgment as to the liability of the individuals, partnership, and corporation in his action against them for breach of contract and conversion. The trial court granted the motion, ruling that since the individuals, partnership, and corporation did not admit or deny the requests for admissions presented by the investor, those statements were deemed admitted: The assertion of the privilege against self-incrimination is available.But it does not protect [Kramer] from the rules of civil procedure which provide that where an admission is requested and its neither admitted nor denied it shall be taken as admitted. Kramer, 558 A.2d at 763. In remanding for a new trial as to damages, the court held that it was not permissible for a trial court to deem admitted those requests for admissions neither admitted nor denied by a party; however, the jury could draw an adverse inference from the partys assertion of his Fifth Amendment privilege in response to the discovery requests.

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The court reasoned that although at the time Kramer was served with the requests for admissions, he was not faced with a criminal prosecution, he could reasonably fear that the information gained from his admissions might furnish a basis for charges. The court further reasoned: [The rules of civil procedure] clearly state that in responding to a request for admissions, a party must specify an objection, admit or deny the matter. [Kramer] did in fact comply with this directive. Specifically, [Kramer] objected to the requests for admissions and asserted his Fifth Amendment privilege as the reason for his objection. Kramer, 558 A.2d at 765. The court concluded that it would have been constitutionally permissible under Baxter for the trial judge to allow the requests for admissions to be read to the jury. The court then should have instructed the jury that Kramer objected to answering these requests relying on his constitutional privilege against self-incrimination, and that they may, but need not, draw an adverse inference from Kramers assertion of his privilege that his answers to the requests would have been adverse to his interests. See Cokely v. Cokely, 469 So.2d 635 (Ala. Civ. App. 1985); Chaffin, Inc. v. Wallain, 689 P.2d 684 (Colo. App.1984); Asplin v. Mueller, 687 P.2d 1329 (Colo. App.1984) as cited in Kramer at 766. Thus, the court concluded that although the jury does not have to draw an adverse inference from the partys invocation of the Fifth Amendment privilege, it may choose to do so. As stated earlier, a court may compel a parent to comply with discovery requests in a Child Protection proceeding. Under New York law, the court, in deciding on a motion for a protective order by the parents, must weigh the partys need for the discovery to assist in the preparation of the case and any potential harm to the child from the discovery. Matter of David E., 176 Misc. 2d 363. In Matter of David E., the county filed a demand

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for interrogatories and a request for admissions in the Child Neglect proceeding. The parents filed for a protective order as to both. New York Family Court Act article 10 provides that unless otherwise proscribed by article 10, the provisions of New York Civil Practice Law and Rules article 31 apply to proceedings under article 10. Matter of David E., 176 Misc. 2d 363. Thus, New York Civil Practice Law and Rules apply to Child Neglect proceedings. Relying on New York Civil Practice Law and Rules article 31, which provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an actionbya party, Matter of David E., 176 Misc. 2d at 365, the court denied a protective order as to the demand for interrogatories, holding that the information sought in the interrogatories was not unnecessary, improper, unreasonable, or prejudicial to the parents. As for the request for admissions, the court granted a protective order as to certain statements, concluding that admissions to these statements would amount to admissions of material issues or ultimate or conclusory facts to be proven at trial, and thus the statements were not proper for a request for admissions. Id. at 365. The court reasoned that the purpose of a notice to admit is to eliminate from the issues in litigation matters which will not really be in dispute at the trial. See Falkowitz v. Kings Highway Hosp., 43 AD2d 696 [2d Dept 1973] as cited in Matter of David E., 176 Misc. 2d 363. However, the court continued, a notice to admit cannot be used to seek admissions of material issues or ultimate or conclusory facts. See Villa v. New York City Hous. Auth., 107 AD2d 619 [1st Dept 1985] as cited in Matter of David E., 176 Misc. 2d 363. Thus, under certain circumstances, a court may compel a parent to comply with discovery requests in a Child Protection proceeding.

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The court in Matter of Tyler S., 192 Misc. 2d 728, 748 N.Y.S.2d 215 (2002), similarly ruled that a parent in a Child Protection proceeding may be compelled to comply with discovery requests. As stated above, New York Family Court Act article 10 applies New York Civil Practice Law and Rules to New York Family Court Act article 10 proceedings unless otherwise proscribed by New York Family Court Act article 10. Id. at 731. Under New York Civil Practice Law and Rules, a party to a civil action whose mental condition is sufficiently in controversy may be compelled to submit to a mental health examination upon motion of a party opponent. See Matter of R./G. Children, 165 Misc 2d 518 [Fam Ct, Kings County 1994] as cited in Matter of Tyler S. at 731. Thus, a party to a Neglect proceeding may be compelled to submit to a mental health examination, unless otherwise proscribed by New York Family Court Act article 10. In Matter of Tyler S., the Administration for Childrens Services sought to have the mother evaluated to determine whether she in fact suffered from an untreated mental illness that impaired her ability to care for her child. The court ordered the mother to submit to a mental health examination, holding that New York Family Court Act 1038-a, the provision of article 10 at issue, did not preclude the court from ordering the mother be examined by a psychiatrist for the purpose of evaluating the mothers mental condition. Id. at 737. New York Family Court Act article 10 gives the Family Court the authority to order discovery in New York Family Court article 10 proceedings to be coextensive with that possessed by courts in any other proceedings governed by New York Civil Practice Law and Rules, except where specifically limited by New York Family Court Act article 10. Id. at 735. The court reasoned that although New York Family Court Act 1038-a proscribes discovery of nontestimonial evidence in New York Family Court Act article 10

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proceedingsthat is, physical evidence compelled from the personthe statute is silent as to testimonial evidence. Id. at 735. The court gave a possible explanation for the proscription of nontestimonial evidence in New York Family Court article 10 proceedings: New York Family Court Act 1038-a recognizes that when the government seeks to discover evidence by means that intrude upon a person's bodily integrity, the government action implicates the Fourth Amendment prohibition against unreasonable searches and seizures, and should be justified by probable cause that the evidence is reasonably related to establishing the allegations in the petition. The legislature imposes this higher burden on parties in a New York Family Court Act article 10 proceeding, only as to the discovery of "nontestimonial" evidence obtained from a [parents] physical body. Matter of Tyler S., 192 Misc. 2d at 735. Concluding that there was no indication in the language of the statute of any legislative intent to circumscribe discovery of testimonial evidence from a parent in a New York Family Court Act article 10 proceeding, the court held that testimonial evidence, i.e. evidence obtained from a witnesss submission to a mental health examination, may be compelled in a New York Family Court Act article 10 proceeding to the same extent as in any other civil proceeding, unless the statute may be read to imply a silent proscription. Id. at 735. The court did not indicate one way or another whether the statute should be read to imply such a proscription.

Conclusion
1. The Fifth Amendment privilege against self-incrimination is available to a parent in

a Child Protection proceeding. Under In re J.W., a parent must invoke the privilege as to the specific question to which her answer would incriminate her, and the court must then resolve the Fifth Amendment claim as to that specific question. Under Baxter, and other case law, the Fifth Amendment does not forbid adverse inferences against parties to civil

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actions when they refuse to testify in response to probative evidence offered against them. Moreover, an adverse inference may be drawn from a parents failure to testify in a Child Protection proceeding. Under In re Samantha C., however, the trial court must give the parent prior notice of its intent to draw an adverse inference from the parents failure to testify. 2. The Fifth Amendment privilege against self-incrimination is available to witnesses

not only at trial, but at the discovery stage of civil proceedings as well. Under Kramer, an adverse inference may be drawn from a witnesss refusal to respond to discovery requests in a civil proceeding. Should the court have a proper basis for not compelling a parent to comply with discovery requests in a Child Protection proceeding, i.e. a valid Fifth Amendment invocation, this, and other case law, can be used to imply that an adverse inference may be drawn from the parents refusal to respond to the discovery requests.

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