Opinion
No. H14-CP07-008944-A
April 12, 2007
MEMORANDUM OF DECISION
On January 12, 2007, the petitioner, Commissioner of the Department of Children and Families ("DCF") filed a petition, pursuant to Connecticut General Statutes ("C.G.S.") Section 46b-129, alleging that the minor child, Antoine S. (a.k.a. Antoine F.), was neglected within the meaning of C.G.S. § 46b-120. On January 12, 2007, the court granted DCF's request for an ex parte Order of Temporary Custody ("OTC"). At the ten-day preliminary hearing on January 19, 2007, the respondent parents waived their right to a ten-day hearing and opted to proceed to a contested OTC hearing on April 16, 2007. On February 8, 2007, the respondent father filed a motion in limine to preclude the use of information provided by the father's psychologist. DCF obtained the information as a result of a release signed by the father prior to DCF's filing of the OTC and neglect petition. Specifically, respondent father claims that the release was invalid because it was obtained prior to his advisement of rights.
On February 15, 2007, this court heard oral argument on the motion in limine and requested that the parties file memoranda of law in support of their respective positions. At the parties' request, the court scheduled an evidentiary hearing and further oral argument on this matter. During oral argument, respondent father conceded that, even if the objectionable information were stricken from the affidavit, it was sufficient to support this court's ex parte granting of the OTC. While not challenging the issuance of the ex parte OTC, he objected to DCF's use of the information or testimony from the psychologist in the upcoming contested OTC hearing and neglect trial. On March 29, 2007, at the evidentiary hearing on respondent father's motion in limine, the respondent father opted not to call witnesses in support of his motion. The petitioner, however, called Ms. Marybeth Hill, the DCF Social Worker that obtained the release and information at issue. After hearing testimony in this matter, the court heard further argument from counsel and offered all parties the opportunity to file supplementary briefs on or before April 4, 2007. The parties have not filed additional memoranda.
Specifically, respondent father objects to the use of the information contained within the first paragraph on page 4 of the social worker affidavit, submitted in support of the OTC.
Respondent father has not sought, based on the same grounds, to preclude any admissions made by him during the initial meeting with DCF.
I. RELEVANT FACTS
The credible evidence admitted during the evidentiary hearing established the following.
On December 21, 2006, the mother, Anju F., gave birth to a premature baby, Antoine S., at New Britain General Hospital. (Transcript of Hearing on March 29, 2007 at pp. 44 and 54). After receiving a referral from the hospital social worker regarding concerns about the parents' ability to care for the child, DCF assigned Social Worker Hill to investigate the matter on January 4, 2007. Ms. Hill contacted the respondent father by telephone on January 4, 2007, and made an appointment to meet with both parents the next day. The worker also learned that the hospital staff and family had attempted to find a placement for the child because they did not feel the parents would be able to care for the child appropriately. Among the concerns reported to DFC were: mother's weakness in her arms due to cerebral palsy; father's explosive anger outbursts and ADHD; unsuccessful attempts to place services in the home; parents were living with maternal grandmother; and domestic violence issues in maternal grandmother's home.
On January 5, 2007, Ms. Hill met with the respondent parents. (Tr. at pg. 45.) While Ms. Hill does not recall whether she provided the parents with the DCF brochure advising them of their rights (Tr. at pp. 53-54), she discussed the concerns that had been reported to DCF and advised them of the court process once removal occurred and their ability to apply for counsel from the court. (Tr. at pg. 52.) Ms. Hill and the parents discussed placement options for the child and the likelihood, given the concerns, that their child would not be released to their care. (Tr. at pp. 45-48.) During this meeting, the respondent father made various representations about services that the parents were receiving, including admissions about counseling and treatment he was receiving. (Tr. at pp. 46 and 55.) At the conclusion of the meeting with the respondent father and mother, the DCF social worker explained the release to the respondent father and obtained the signed release.
Thereafter, Ms. Hill spoke with father's treating psychologist to confirm the medications and treatment that father admitted to undertaking. Ms. Hill included in her affidavit in support of the OTC a statement about father's diagnosis, level of care and compliance with the treatment. It is the paragraph and information obtained from the psychologist that is the subject of the motion in limine.
II. DISCUSSION
Connecticut Practice Book Section 15-3 permits parties to file a motion in limine in civil proceedings. Specifically, section 15-3 states "[t]he judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine." Since the basis for the motion in limine does not "hinge on facts that can properly be determined only during the trial after the necessary prerequisite testimony has been presented," it can be addressed by this court prior to the start of evidence in the contested OTC hearing. Richmond v. Longo, 27 Conn.App. 30, 36 (1992). In fact, resolution of this motion in advance of the OTC hearing will assist the parties in preparing their respective case for hearing.
As conceded at oral argument, the respondent father can cite no statutory or legal authority to support his claim that the release is invalid because DCF was required to advise him of his rights. Rather, he relies on In re Na-Shawn J., 41 Conn. L. Rptr. 567 (2006), claiming that, while only persuasive authority, that decision should guide this court in concluding that the releases signed by the father prior to the filing of the neglect petition and the appointment of counsel were not knowingly or voluntarily provided. In essence, respondent father claims that this court should impose a requirement on DCF to advise parents of their Miranda rights at the start of any investigation and prior to the filing of any petition in court.
Respondent father's claim fails to recognize that child protection matters are civil proceedings and do not carry the same constitutional protections afforded to individuals charged with criminal offenses. The respondent father invokes the Fifth Amendment protections as applied to the states through the Fourteenth Amendment. The Fifth Amendment provides: "[n]o person . . . shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty, or property, without due process of law . . ." Similarly, the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense." However, child protection matters are civil proceedings. Pursuant to Conn. Gen. Stat. § 46b-121(a), "[j]uvenile matters in the civil session include all proceedings concerning uncared-for, neglected of dependent children and youth within this state . . ." Connecticut courts have recognized that unlike juvenile delinquency matters which are quasi-criminal in nature, child protection matters are civil proceedings. See In re Baby Girl G., 224 Conn. 263, 281-82 (1992); In re Samantha C., 268 Conn. 614, 640 (2004); In re Nicholas, 92 Conn.App. 316, 321 (2005).
Respondent's father's reliance on In re Shawn J. is misplaced because in that case the releases were obtained after the filing of the petition to terminate parental rights. 41 Conn. L. Rptr. 567 (2006) (Court determined that "the signings of releases by the respondents subsequent to the filing of the petition to terminate parental rights [but prior to consulting with their attorneys] were not knowing and voluntary on the part of the respondents"). Thus, respondent father's attempt to extend constitutional safeguards and the exclusionary rule to evidence obtained prior to the filing of the petition is not appropriate.
During oral argument, counsel for the respondent father also cited to the Second Circuit Court of Appeal's decision in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999). However, that case did not address the issue presented here. The case involved an appeal of the district court's decision of summary judgment motions in a civil complaint for damages filed by the parents after their child was removed from school, without the parents' knowledge or consent, and subjected to a medical examination to determine the validity of sexual abuse claims.
The Connecticut Appellate Court has rejected similar attempts by respondent parents to apply the exclusionary rule in child protection proceedings. In re Nicholas, 92 Conn.App. at 321. The respondent father in In re Nicholas appealed the trial court's decision to admit the results of a medical examination of his child which he claimed DCF obtained, by coercion and without probable cause, prior to the filing of an OTC and neglect petition. Id. The Appellate Court affirmed the trial court's decision noting that there was no evidence of coercion and that the exclusionary rule did not apply to civil proceedings. Id.
More importantly, respondent father's claim that DCF was required to advise him of his rights prior to filing the petition and seeking the release is contradicted by the statutory scheme that governs these proceedings. Pursuant to Conn. Gen. Stat. § 46b-137(b),
[a]ny admission, confession or statement, written or oral, made by the parent . . . after the filing of a petition alleging such child or youth to be neglected, uncared-for or dependent, shall be inadmissible in any proceeding held upon such petition against the person making such admission or statement unless such person shall have been advised of his right to retain counsel, and that if he is unable to afford counsel, counsel will be appointed to represent him, that he has the right to refuse to make any statement and that any statements he makes may be introduced in evidence against him.
As the Connecticut Supreme Court noted, the legislative history of this section made it clear that "[t]he legislature's use of Miranda-type warnings in § 46b-137(b) sought to prevent the petitioner from obtaining, and admitting into evidence, a parent's unwarned statement made after the filing of a petition." In re Samantha, 268 Conn. at 649 (emphasis added) (distinguishing rights afforded to children in quasi-criminal delinquency proceedings from parent's rights in child protection cases in permitting the use of an adverse inference from a parent's silence in a child protection case). In this case, the neglect and OTC petition were filed on January 12, several days after the father signed the release and DCF obtained the evidence sought to be excluded. Thus, under applicable statutes, the respondent father was not entitled to advisement of his rights until the filing of the petition and is therefore not entitled to exclusion of evidence obtained prior to the vesting of such rights.
Nor is there any evidence in this case to suggest that DCF attempted to circumvent the respondent father's rights by illegally obtaining the release. DCF received a referral from hospital staff regarding concerns over the parents' ability to adequately care for the child. The department had an obligation to investigate those allegations and attempted to do so by contacting the respondent father. DCF did not conceal the purpose of its inquiry and there is no evidence that the release was obtained through coercion.
Even assuming, arguendo, there was evidence to support a finding that the respondent father was forced or coerced into providing the release, the information would not necessarily be subject to exclusion. See In re Nicholas, 92 Conn.App. at 321 ("[E]ven if the [trial] court had concluded that the parents had been forced to seek a medical examination [of the child], the exclusionary rule would not apply so as to make the evidence inadmissible"). "[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence." Segale v. O'Connor, 91 Conn.App. 674, 677 (2005). The facts and law in this case do not support the respondent father's request for relief.
III. CONCLUSION
For the reasons set forth above, the respondent father's motion in limine is denied. The information obtained from the father's psychologist up and until the revocation of the release by the father will, subject to compliance with all other rules of evidence, be admissible at the contested OTC hearing.
It is so ordered.