In re Josiah D.

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IN RE JOSIAH D. ET AL.*
(AC 44096)
Bright, C. J., and Lavine and Elgo, Js.**

Syllabus

The respondent father appealed from the judgments of the trial court termi-
nating his parental rights with respect to his two minor children. He
claimed that the court committed reversible error by failing to notify
him that it would be drawing an adverse inference from his decision
not to testify, and that this court should exercise its supervisory authority
over the administration of justice to adopt an advisement requiring the
trial court to affirmatively notify him that it would be drawing an adverse
inference upon his decision not to testify. Held:
1. The trial court properly notified the respondent father that it may draw
an adverse inference from his decision not to testify: prior to the presen-
tation of evidence, the court notified the father of his rights pursuant
to In re Yasiel R. (317 Conn. 794), which included the right to remain
silent and the notice required to a parent under the applicable rule of
practice (§ 35a-7A), that the judicial authority may draw an adverse
inference from his failure to testify, which was entirely consistent with
the holding of our Supreme Court that the notice be given at the very
start of the termination trial, before a decision as to whether to challenge
evidence has been communicated to the court, and to all parents involved
in a termination trial, not just to those parents whose attorneys have
made a tactical decision not to contest evidence; moreover, contrary
to the father’s claim, § 35a-7A does not require a second notice to the
parent that the court would be drawing an adverse inference from a
parent’s failure to testify, as the rule itself provides notice to a parent
that the court may draw an adverse inference, and a notice provided
at the start of the trial is the least coercive manner of advising a parent
of his or her right to remain silent and the possible consequences of doing
so; furthermore, even if it were assumed that the court was required to
affirmatively notify the father that it would be drawing an adverse infer-
ence from his failure to testify, the notice given at the beginning of the
termination trial was proper, and any impropriety was harmless in light
of the court’s detailed findings of fact in its memorandum of decision
and its subsequent articulation, which dispelled any notion that the
court’s drawing of an adverse inference from the father’s decision not
to testify was determinative of the court’s decision to terminate his
parental rights.
2. This court declined to exercise its supervisory authority over the adminis-
tration of justice to require a trial court in a termination of parental
rights trial to affirmatively notify a parent that it would be drawing an
adverse inference from the parent’s decision not to testify, notice that
is beyond what is required by § 35a-7A; this case did not present the
type of extraordinary circumstance for which the exercise of supervisory
power was intended, and § 35a-7A ensures the fair and just administra-
tion of the courts in termination of parental rights cases.
Argued November 9, 2020—officially released January 13, 2021***

Procedural History

Petitions by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor children, brought to the Superior
Court in the judicial district of Fairfield, Juvenile Mat-
ters, where the matter was tried to the court, Brillant,
J.; judgments terminating the respondents’ parental
rights, from which the respondent father appealed to
this court. Affirmed.
Karen Oliver Damboise, for the appellant (respon-
dent father).
Kim Mathias, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, and
Benjamin Zivyon and Evan O’Roark, assistant attor-
neys general, for the appellee (petitioner).
Opinion

LAVINE, J. The respondent father, Geraldo D.
(father), appeals from the judgments of the trial court
rendered in favor of the petitioner, the Commissioner
of Children and Families, terminating his parental rights
with respect to his sons, Josiah D. (Josiah) and Jovani
D. (Jovani) (collectively, sons or boys),1 on the ground
that he had failed to achieve a sufficient degree of
personal rehabilitation pursuant to General Statutes
§ 17a-112 (j) (3) (B) (i). On appeal, the father does not
challenge the trial court’s findings and conclusions but
claims that (1) the court committed reversible error by
failing to notify him that it would be drawing an adverse
inference from his decision not to testify in accordance
with Practice Book § 35a-7A and In re Samantha C.,
268 Conn. 614, 847 A.2d 883 (2004), and (2) this court
should exercise its supervisory authority to adopt a
canvass requiring the trial court to notify the father that
the court would draw an adverse inference upon his
decision not to testify. The petitioner counters that the
court properly notified the father in accordance with
Practice Book § 35a-7A, but if this court determines
that the court’s notice was improper, the error was
harmless, as it did not adversely affect the outcome of
the trial.2 We conclude that the court properly notified
the father that it may draw an adverse inference from
his decision not to testify and decline the father’s invita-
tion to exercise our supervisory authority to require
any notice beyond what is required by Practice Book
§ 35a-7A. We affirm the judgments of the trial court.
‘‘Proceedings to terminate parental rights are gov-
erned by § 17a-112. . . . Under [that provision], a hear-
ing on a petition to terminate parental rights consists
of two phases: the adjudicatory phase and the disposi-
tional phase. During the adjudicatory phase, the trial
court must determine whether one or more of the . . .
grounds for termination of parental rights set forth in
§ 17a-112 [(j) (3) (B) (i)] exists by clear and convincing
evidence. The [petitioner] . . . in petitioning to termi-
nate those rights, must allege and prove one or more
of the statutory grounds. . . . Subdivision (3) of § 17a-
112 (j) carefully sets out . . . [the] situations that, in
the judgment of the legislature, constitute countervail-
ing interests sufficiently powerful to justify the termina-
tion of parental rights in the absence of consent. . . .
Because a respondent’s fundamental right to parent his
or her child is at stake, [t]he statutory criteria must
be strictly complied with before termination can be
accomplished and adoption proceedings begun.’’ (Inter-
nal quotation marks omitted.) In re Tresin J., 334 Conn.
314, 322–23, 222 A.3d 83 (2019). ‘‘If the trial court deter-
mines that a statutory ground for termination exists, it
proceeds to the dispositional phase. In the dispositional
phase, the trial court determines whether termination
is in the best interests of the child.’’ (Internal quotation
marks omitted.) In re Destiny R., 134 Conn. App. 625,
629, 39 A.3d 727, cert. denied, 304 Conn. 932, 43 A.3d
660 (2012).
The record discloses that employees of the Depart-
ment of Children and Families (department) had been
involved with the boys’ family since 2004, as a result
of a referral regarding one of their mother’s older chil-
dren. In May, 2016, and again in November, 2016, the
petitioner filed neglect petitions and motions for orders
of temporary custody with respect to the boys, but
subsequently withdrew them and the boys were
returned to their parents. The department, however,
continued to be involved with the family in connection
with the mother’s older child and pursuant to a referral
from local police. The petitioner invoked a ninety-six
hour administrative hold on the boys on March 24, 2017.
On March 28, 2017, the petitioner filed motions for
orders of temporary custody and neglect petitions as
to each of the boys. On May 31, 2017, the court, Ginoc-
chio, J., adjudicated the boys neglected. On April 13,
2018, the petitioner filed petitions for the termination
of the parental rights of the father and the mother as
to each of the boys. As to the father, the petitioner
alleged, pursuant to § 17-112 (j) (3) (B) (i), that, in a
prior proceeding, the boys were found to have been
neglected, abused, or uncared for, and that the father
had failed to achieve a sufficient degree of personal
rehabilitation that would encourage the belief that
within a reasonable time considering the ages and needs
of his sons, the father could assume a responsible posi-
tion in their respective lives.
The termination of parental rights trial was held
before the court, Brillant, J., on September 24, 25, and
26, and December 10, 2019. On February 24, 2020, the
court issued a memorandum of decision, which
included the procedural history, the court’s factual find-
ings and conclusions, and an order terminating the
father’s parental rights as to the boys. In its decision,
the court noted that the father had appeared for trial
and was represented by counsel.3 The court advised
the father of his rights pursuant to In re Yasiel R., 317
Conn. 773, 794, 120 A.3d 1188 (2015).4 The court noted
that the petitioner had introduced twenty-eight exhibits
and called eight witnesses at trial. The father was repre-
sented by counsel, but he ‘‘did not introduce any exhib-
its, did not testify on his own behalf, and did not call any
witnesses.’’ The court stated that it drew ‘‘an adverse
inference with regard to [the] [f]ather.’’ At the petition-
er’s request, the court took judicial notice of the
court record.
The court found that on February 10, 2017, local
police reported to the department that a motorist had
seen then three year old Josiah running across the street
in heavy traffic. Josiah had been playing in the yard of
the family home under the father’s supervision, but the
father did not realize that Josiah had left the yard until
he saw him across the street with the motorist and the
police. At the time, the department investigated the
family home and found that it was cluttered and needed
to be cleaned.
On March 23, 2017, an elementary school staff mem-
ber reported to the department that Josiah had not
attended preschool since March 9, 2017. The depart-
ment attempted to visit the family home on March 23,
2017, but no one was home. The department visited
the nearby maternal grandmother’s home. The maternal
grandmother informed the department that due to inti-
mate partner violence between the father and the
mother, she financially assisted the mother in leaving
the home the mother shared with the father. The depart-
ment returned to the home and met the father, who
informed the department that the mother had taken the
boys on a vacation because he and the mother could not
afford heat or electricity in the home. The department
observed that the home was cold, cluttered with laun-
dry, smelled of dirty diapers, and appeared to be with-
out electricity.
On March 24, 2017, the department invoked a ninety-
six hour administrative hold on the boys due to its
concerns regarding their lack of adequate housing. On
March 28, 2017, the court, Hon. Jonathan J. Kaplan,
judge trial referee, granted the petitioner’s motions for
orders of temporary custody of the boys. The petitioner
had filed neglect petitions on behalf of each of the boys
as to each of his parents on March 17, 2017. On May
31, 2017, Judge Ginocchio adjudicated the boys
neglected and committed them to the care of the peti-
tioner.5 On February 8, 2018, Judge Ginocchio and, on
January 10, 2019, the court, Maronich, J., approved the
department’s permanency plans for termination of the
father’s parental rights as to his sons and for the boys
to be adopted. On April 13, 2018, the petitioner filed
petitions for termination of the father’s parental rights
as to his sons, alleging in part that the father had failed
to achieve the degree of personal rehabilitation that
would encourage the belief that within a reasonable
time, considering the age and needs of the boys, the
father could assume a responsible position in their lives
pursuant to § 17-112 (j) (3) (B) (i).6
The court found that the father was born in 1975,
and that he has a wife and two children in Brazil. His
primary language is Portuguese, and he relies on the
mother for interpretation. He is an undocumented indi-
vidual, who works as a landscaper, and has no criminal
history in the United States. In June, 2017, after the
boys had been committed to the petitioner’s care, the
father was referred to the Midwestern Connecticut
Council of Alcoholism, Inc. (MCCA) for a substance
abuse and mental health assessment. His test results
were negative and no treatment recommendations were
made for him. In September, 2018, the father again was
referred to MCCA to confirm that he had no substance
abuse issues, but he did not comply with the referral.
Although the father had no reported substance abuse
or mental health issues, the department referred him
to the Women’s Center and to the Center for Safer
Communities for parenting classes, intimate partner
violence, and individual counseling beginning in August,
2018. The department made the referrals due to its
concerns regarding the father’s judgment and decision-
making skills as a parent, and also because the maternal
grandmother and local police had reported that the
father was involved in intimate partner violence. The
father also was referred to Family and Children’s Aid for
individual therapy with a Portuguese speaking clinician.
The father did not comply with the services offered.
The court also found that the father is oblivious to
the mother’s substance abuse issues and was not aware
that she needed methadone maintenance.7 Although the
father made his whereabouts known to the department,
he did not cooperate with the department’s requests to
visit the family home and did not allow the department
to assess it until days before trial. He failed to keep all
of the appointments set by the department. The father
did not attend a parenting program, did not attend meet-
ings with ABLE Home Healthcare (ABLE) to understand
and learn how to care for Josiah’s special needs, and
he did not attend meetings with the Birth to Three
program for Jovani.
In 2019, the department asked the father to undergo
another substance abuse evaluation because the mother
was actively using drugs, and it had been approximately
two years since his last assessment. The father complied
with the court-ordered evaluations. The father, how-
ever, did not sign releases granting the department per-
mission to communicate with or to gather information
from all service providers. The department arranged
for the father to visit with the boys for one hour, one
day a week, but the father did not attend all of the
scheduled visits.
The court made the following findings with respect
to each of the boys. Josiah was born in September,
2013. The mother took methadone during her pregnancy
with him and, therefore, he was exposed to methadone
in utero. Following his birth, he spent several weeks
in the neonatal intensive care unit of a hospital where
he was treated for drug withdrawal. Josiah and his
younger brother, Jovani, were removed from the care
of their parents on March 24, 2017, due to intimate
partner violence and lack of adequate housing. At the
time of his removal, Josiah presented with delayed lan-
guage development, social and emotional issues, and
physical aggression. He was not verbal, not toilet
trained, and his development was comparable to that
of an eighteen to thirty month old child. Josiah was
diagnosed with autism, and he was provided with in-
home services for fifteen to twenty hours per week to
learn life skills through ABLE. Josiah’s foster parents
engaged in 50 percent of the hands-on activities with
him.
Due to Josiah’s developmental delays and the inabil-
ity of some of his former foster parents to meet his
special needs, he had multiple foster care placements
between March and July, 2017. At the time of trial, he
had been in the same nonrelative therapeutic foster
home since July, 2017. With the assistance of special
education classes and in-home behavioral support, the
court found that Josiah was thriving, despite having
had multiple caregivers. Josiah and Jovani were not
placed together because Josiah requires one-on-one
attention to address his developmental needs. The boys
visit together with their parents once a week. Josiah
has bonded with his foster parents, who love him and
are willing to adopt him.
Jovani was born in December, 2015. Due to her prior
heroin addiction, the mother took methadone during
her pregnancy and thus exposed Jovani to the drug. He
has been diagnosed with attention deficit hyperactivity
disorder and post-traumatic stress disorder. He lived
with his parents until he was removed from their care
on March 24, 2017, due to his parents’ intimate partner
violence and inadequate housing. He was fifteen months
old at the time and was placed in a nonrelative foster
home, where he continued to reside at the time of trial.
When he was placed in foster care, Jovani was not able
to chew or to eat solid food. He could not walk and
spoke by ‘‘ ‘babbling.’ ’’ The Birth to Three program
reported that he had a global developmental delay and
immediately began to provide him with physical ther-
apy, occupational therapy, and speech therapy. Due
to his medical diagnoses, he received parent involved
treatment, psychotherapy, and parent-child manage-
ment, once per week. Those treatment programs
required a consistent caregiver to attend therapy with
Jovani on a regular basis in order for him to feel safe
and to be able to process all that had occurred in his
life, including having been removed from his parents’
home. He needs therapy on a consistent basis so that
he can regulate his feelings and not feel afraid, and he
requires services for communication and fine motor
skill development and problem-solving. Jovani’s devel-
opment had progressed at the time of trial so he no
longer was receiving services from Birth to Three, but
he still was receiving occupational and speech therapy.
The court also found that as of the adjudicatory date,8
the petitioner has known of the father’s whereabouts
and continuously has offered him services. The court
therefore found by clear and convincing evidence that
the department had made reasonable efforts to locate
and to offer the father appropriate services to facilitate
his reunification with the boys. Those services included
a referral to a Portuguese speaking therapist for individ-
ual therapy so that the father could understand the boys’
special needs; services to help the father understand
the mother’s substance abuse issues; services to teach
the father appropriate coping skills due to his history
of intimate partner violence; Birth to Three to engage
the father in Jovani’s developmental services; informa-
tion regarding the ABLE program to help the father
understand and care for Josiah’s needs and communica-
tion; guidance and encouragement to engage with Josi-
ah’s school regarding his individual education program;
assessment of relative resources for foster care place-
ment; administrative review of treatment plans, and
case management services. The department also
arranged for the father to visit with the boys weekly.
The court further found that the father was unwilling
to benefit from the reunification efforts the department
offered him.
In addition, the court found by clear and convincing
evidence that the department had met its burden and
proved that the father had not achieved a degree of
personal rehabilitation that would encourage the belief
that within a reasonable period of time, given the ages
of the boys, their special needs, and their need for
permanency, the father could assume a responsible
position in the boys’ lives. This is especially true
because Josiah has autism and relies on many develop-
mental and behavioral services. Jovani also has special
needs and requires therapy. The department scheduled
weekly visits for the father and his sons, but the father
did not attend them all. Initially, the department pro-
vided transportation for the father from the family home
to the visitation site, but transportation ceased in
approximately April, 2019, due to the father’s inconsis-
tent participation and logistical problems. The court
found that the boys had been out of the father’s care
since March, 2017, and that they were in need of perma-
nency and stability.
Wendy Levy, a clinical psychologist, evaluated the
father and reported that he has cognitive limitations
and is dependent on the mother. He failed to engage
in the services recommended to him, particularly par-
enting classes to learn how to care for the boys who
have special needs. According to Heather Bullock of
ABLE, due to Josiah’s autism and behavior, the father
would need to be extremely diligent and consistently
involved, otherwise Josiah’s developmental progress
could regress. Josiah’s behavior could worsen as his
language skills suffer.
The father was offered numerous services to aid his
reunification with his sons, including substance abuse
evaluation services, mental health services, parenting
education, and supervised visits, but he was unwilling
to complete his court-ordered specific steps to facilitate
reunification. The father’s primary issues are lack of
adequate decision-making for his sons and lack of
appropriate judgment as he remained in a relationship
with the mother even after the boys were taken from
their care and two of the mother’s other children were
removed from her care. He has not taken the steps
necessary to gain an understanding of the boys’ spe-
cial needs.
The court found that, although the father does not
have substance abuse issues, he was still required to
complete a parenting program and an intimate partner
violence program, but he completed neither one. The
father argued that there was no need for an intimate
partner violence program because there had been no
more such incidents between him and the mother. The
father, however, continues to associate with the mother
who has a track record of either injuring her children
or not taking care of their many needs, which stifles
the children from thriving emotionally, physically,
developmentally, and educationally. The father remains
in a relationship with the mother and has failed to do
anything of substance proactively or reactively, with or
without the mother, to advance his ability to properly
care for his sons.
The court concluded that the father is unable to meet
the developmental, emotional, educational, and moral
needs of his sons. By all indications, the father cannot
and will not provide for the boys’ safe shelter, nurtur-
ance, and security. He refused to cooperate with the
department and did not consistently attend scheduled
visits with his sons. The court found that the father had
failed to achieve a reasonable degree of rehabilitation
to care for his sons.
The court further found that the father failed to gain
sufficient insight into his issues to the extent necessary
for the boys to safely return to his care. The father
failed to achieve sufficient personal rehabilitation by
failing to acquire adequate housing on a timely basis,
failing to benefit from parenting education, failing to
benefit from intimate partner violence education, and
failing to benefit from department assistance in educat-
ing him about his sons’ special needs. The court recog-
nized that the father is a hard worker and does not
have a substance abuse problem. However, he failed
to learn how to be a parent to his sons who have special
needs because he did not attend educational programs
and meet with service providers. The court found on the
basis of credible testimony and documentary evidence,
pursuant to General Statutes §§ 17a-112 (j) (1) and 17a-
111b (a), that the petitioner had met her burden of proof
by clear and convincing evidence that the father failed
to achieve the degree of rehabilitation that would
encourage the belief that in a reasonable time, he could
assume a responsible position in the lives of Josiah
and Jovani.
The court then addressed the dispositional require-
ments of § 17a-112 (k).9 The court made the following
written findings. The department had made reasonable
efforts to reunite the father with his sons by offering
him timely and appropriate services. The father refused
the services offered to him and, therefore, did not fulfill
his obligations pursuant to the specific steps ordered
by Judge Ginocchio on May 31, 2017. Because he failed
to comply with the specific steps, the father has failed
to benefit from the services the department offered to
him, which had a negative impact on the reunifica-
tion process.
Six and one-half year old Josiah is happy to see his
father when they visit. He has autism and relies on
his foster parents to meet all of his needs, including
participation in ABLE, which helps Josiah accomplish
the tasks of daily living. He has bonded with his foster
parents, who are nurturing, loving, and ready, willing,
and able to adopt him.
Jovani has lived with his foster mother since he was
fifteen months old; he is now four years old. He has
bonded with his foster mother, who has devoted a great
deal of time to help him grow developmentally, educa-
tionally, physically, and emotionally. Jovani enjoys his
visits with his father, but he looks to his foster parents
to fulfill his needs on a daily basis. His foster parents
are committed to loving and caring for him and are
willing to adopt him.
The boys’ foster parents are attentive to the boys’
respective special needs. The boys refer to their respec-
tive foster mothers as ‘‘ ‘mom.’ ’’ The court found that,
although the boys and the father love one another, much
more is required for the father to be reunified with
them.
Pursuant to its previously discussed findings, the
court concluded that the father had made insufficient
efforts to adjust his individual circumstances, conduct
or conditions to make it in the best interests of the
boys to return safely to his care in the foreseeable
future. The father has not been able to put the boys’
interests before his own, and he has failed to take advan-
tage of the services offered to him to facilitate reunifica-
tion. The father sat idly by while the mother struggled
with substance abuse. He did not take a leadership role
in taking care of his sons. Under the care of their foster
families and with the assistance of service providers,
the boys have thrived in nurturing, stable, and loving
environments. To take them from their foster environ-
ments would cause them to suffer.
Finally, the court found that there was no credible
evidence that the father has been prevented from main-
taining a meaningful relationship with either Josiah or
Jovani. The department encouraged him to maintain
a relationship with the boys. No unreasonable act or
conduct by any person or agency nor the father’s eco-
nomic circumstances has prevented him from main-
taining a meaningful relationship with his sons. The
father’s failure to maintain a meaningful relationship
with his sons is a result of his own actions or circum-
stances in refusing to cooperate with the services pro-
vided to him.
When determining whether termination of the
father’s parental rights is in the best interests of the
boys, the court considered the factors in § 17a-112 (k).
See footnote 9 of this opinion. The court made written
findings regarding the termination of the father’s paren-
tal rights as to the boys and found by clear and convinc-
ing evidence that the only way the boys will find stabil-
ity, continuity, continued growth and development is
through permanency. The father is not able to assume
a responsible position in the boys’ lives given their ages,
special needs, and immediate need for permanency.
The court concluded that grounds exist to terminate
the father’s parental rights as he had failed to rehabili-
tate and that it is in the best interests of the boys to
do so. The court, therefore, ordered the parental rights
of the father terminated and appointed the petitioner
the boys’ statutory parent for the purpose of securing
their adoptions as expeditiously as possible.
Thereafter, the father appealed and, on May 15, 2020,
filed a preliminary statement of issues, i.e., whether (1)
the court committed reversible error by failing to notify
him that it would draw an adverse inference upon his
decision not to testify in accordance with Practice Book
§ 35a-7A and In re Samantha C., supra, 268 Conn. 614,
and (2) this court should exercise its supervisory
authority to adopt an advisement affirmatively notifying
him that the court would draw an adverse inference
upon his decision not to testify.
On June 15, 2020, the petitioner filed a motion for
articulation, requesting that the trial court articulate its
February 24, 2020 memorandum of decision regarding
the court’s decision to draw an adverse inference
against the father because he did not testify at trial.
The petitioner stated that the court’s decision was
ambiguous with respect to the significance of the
adverse inference the court drew against the father,
which is the subject of the issues the father raised on
appeal.10 The father did not oppose the motion for artic-
ulation.
The court granted the petitioner’s motion for articula-
tion on July 17, 2020, and issued a memorandum of
decision addressing the petitioner’s five questions. ‘‘The
court drew an adverse inference against the father . . .
pursuant to In re Samantha C., [supra] 268 Conn. 614
. . . for his choice not to testify at trial. . . . The
father’s choice not to testify, merely showed the court
that [the] father had nothing favorable to say to demon-
strate that he could properly care for his children or
assume a responsible position in their lives. Even with-
out the adverse inference drawn by the court, the court
carefully considered all of the evidence and statutory
criteria and specifically made findings of fact upon
which it relied. . . . The court’s findings of fact were
found by clear and convincing evidence, which did not
rely on the adverse inference [drawn] against [the]
father. Even if the court had not [drawn] an adverse
inference against [the] father, the court still would have
found by clear and convincing evidence that [the] father
was unwilling to benefit from the department’s reason-
able reunification efforts, based on the findings of fact
which were fully articulated in the decision. . . . The
court would have made the same findings of fact and
conclusions of law by clear and convincing evidence,
resulting in it being in the best interests of the minor
children to terminate the parental rights, even without
the court having drawn an adverse inference against
[the] father for his failure to testify. The court’s determi-
nation that termination of the parental rights was in
the best interests of the minor children was based on
the findings of fact and statutory criteria that were fully
articulated in the decision.’’ We now address the claims
raised by [the] father in the present appeal.
I
The father first claims that the court committed
reversible error by failing to notify him that it would
be drawing an adverse inference from his decision not
to testify at the termination of parental rights trial con-
trary to Practice Book § 35a-7A and In re Samantha
C., supra, 268 Conn. 614. We disagree.
As previously set forth, prior to the presentation of
evidence, the trial court notified the father of his rights
pursuant to In re Yasiel R., supra, 317 Conn. 794, which
included an advisement of his rights under Practice
Book § 35a-7A.11 Specifically, the court stated: ‘‘[Y]our
decision to testify or not testify at this termination of
parental rights trial is yours to make. However, if you
choose not to testify whether fully at the trial or any
other partial hearing, the trial judge may draw an
adverse inference, which means it could be held against
you. It could be looked at negatively and it could actu-
ally help [the petitioner’s] case if you choose not to
testify. Also, such an adverse inference, or a negative
consequence, may be that [the petitioner] wins the trial
if you choose not to testify.’’ (Emphasis added.) Immedi-
ately thereafter the court asked the father whether he
had any questions, and he stated, ‘‘no.’’ The court also
asked the father if he understood his rights. The father
stated that he understood. At the end of the first day
of evidence, the father’s counsel, Diane Beltz-Jacobson,
stated: ‘‘I believe my client may testify a short—a short
testimony, Your Honor.’’ On the second day of trial, the
court asked Beltz-Jacobson whether she had witnesses
to testify. Beltz-Jacobson stated: ‘‘I do not, Your
Honor.’’
On appeal, the father claims that at the time the court
learned that he would not testify, it should have advised
him that it ‘‘was going to [draw] an adverse inference
for his failure to testify.’’ The father claims that the
notice given by the court at the start of trial merely
informed him of the possibility that the court could
draw an adverse inference, not a certainty that it would
draw an adverse inference from his decision not to
testify. The father, therefore, contends that the court
failed to provide the notice required by Practice Book
§ 35a-7A and In re Samantha C., supra, 268 Conn. 614.
We are not persuaded.
The father’s claim requires us to construe Practice
Book § 35a-7A to determine whether the court failed
to comply with the rule. ‘‘The interpretive construction
of the rules of practice is to be governed by the same
principles as those regulating statutory interpretation.
. . . The interpretation and application of a statute,
and thus a Practice Book provision, involves a question
of law over which our review is plenary. . . . In seek-
ing to determine [the] meaning [of a statute or a rule
of practice, we] . . . first . . . consider the text of the
statute [or rule] itself and its relationship to other stat-
utes [or rules]. . . . If, after examining such text and
considering such relationship, the meaning of such text
is plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence . . . shall
not be considered. . . . When [the provision] is not
plain and unambiguous, we also look for interpretive
guidance to the . . . history and circumstances sur-
rounding its enactment, to the . . . policy it was
designed to implement, and to its relationship to
existing [provisions] and common law principles gov-
erning the same general subject matter. . . . We recog-
nize that terms [used] are to be assigned their ordinary
meaning, unless context dictates otherwise.’’ (Citations
omitted; internal quotation marks omitted.) Mead-
owbrook Center, Inc. v. Buchman, 328 Conn. 586, 594,
181 A.3d 550 (2018).
Practice Book § 35a-7A provides: ‘‘If a party requests
that the judicial authority draw an adverse inference
from a parent’s or guardian’s failure to testify or the
judicial authority intends to draw an adverse inference,
either at the start of any trial or after the close of
the petitioner’s case-in-chief, the judicial authority shall
notify the parents or guardian that an adverse inference
may be drawn from their failure to testify.’’ (Emphasis
added.) Pursuant to the words of § 35a-7A and our
review of the notice the court gave to the parties, the
court did exactly what was required of it. The court
advised the father at the start of the trial in the language
of § 35a-7A, that is, that ‘‘an adverse inference may be
drawn from [the parents’] failure to testify.’’ The father
does not contend otherwise; his contention is that he
was entitled to more than what § 35a-7A requires. He
wanted the court to tell him that it intended to or that
it would draw an adverse inference if he failed to testify.
Section 35a-7A contains no language that requires the
trial court to notify a parent that it will draw an adverse
inference from the parent’s failure to testify. The plain
language of § 35a-7A notwithstanding, the father claims
that the court’s notice was inconsistent with In re
Samantha C., supra, 268 Conn. 614. We disagree.
In re Samantha C. concerned the termination of the
respondent parents’ parental rights as to their minor
child. ‘‘The trial court found, by clear and convincing
evidence, that the respondents had failed to achieve
sufficient rehabilitation . . . and, accordingly, that
court granted the [termination] petitions. In doing so
. . . the trial court expressly drew an adverse inference
against the respondents for their failure to testify at the
termination proceeding . . . .’’ In re Samantha C.,
supra, 268 Conn. 617. The principal issue in the appeal
to our Supreme Court was ‘‘whether then existing [Prac-
tice Book (2001)] § 34-1 (f) allowed an adverse infer-
ence to be drawn against the respondents, without prior
notice, for their failure to testify in a proceeding in
which the petitioner sought to terminate their parental
rights.’’ (Footnote omitted.) Id., 616–17.
Our Supreme Court concluded that Practice Book
(2001) § 34-1 (a), that required the judicial authority to
‘‘advise and explain to the parents their right to silence
at the commencement of any [termination] proceeding,
coupled with the trial court’s repeated affirmation of
that right throughout the various proceedings underly-
ing this appeal, would have led a reasonable person
to believe that such a right was, in fact, unqualified.
Consequently, the [parents] were entitled to be notified
by the court of the prospect that an adverse inference
might be drawn from their silence. Put another way,
if a trial court is 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.’’ (Emphasis added;
internal quotation marks omitted.) Id., 666. Our
Supreme Court reasoned that Practice Book (2001)
‘‘§ 34-1 (a) strongly suggests that [it is] incumbent upon
the trial court, not only to state expressly that parents
have a right to silence, but also to explain, to some
extent, the parameters of that right. The question then
becomes precisely how much explanation was required
in [In re Samantha C.].’’ Id., 667.
After reviewing the law regarding adverse inferences
drawn from a party’s failure to testify in noncriminal
proceedings; id., 634–67; the court answered the ‘‘how
much’’ explanation question, stating that ‘‘a central pur-
pose behind chapter 34, especially [Practice Book
(2001)] § 34-1 (a), was to enable parents in termination
proceedings to make informed choices in structuring
their defense. With those principles in mind, we con-
clude that requiring the court to notify parents in the
event that it may be inclined to draw an adverse infer-
ence is the most plausible procedural solution.’’ Id.,
673. Subsequently, Practice Book § 35a-7A was adopted
and requires the judicial authority to ‘‘notify the parents
or guardian that an adverse inference may be drawn
from their failure to testify.’’ The notice requirement of
Practice Book § 35a-7A, therefore, is consistent with
our Supreme Court’s decision in In re Samantha C. In
the present case, the court informed the father that the
trial court may draw an adverse inference if he did not
testify, which is in accord with Practice Book § 35a-7A.
In his appellate brief, the father states that the can-
vass the court gave at the start of trial was given pursu-
ant to In re Yasiel R., supra, 317 Conn. 773, and there-
fore was insufficient because it was not given pursuant
to Practice Book § 35a-7A. This argument lacks merit,
as it ignores the reasoning of In re Yasiel R., which
requires ‘‘a brief canvass of all parents immediately
before a parental rights termination trial so as to ensure
that the parents understand the trial process, their
rights during the trial and the potential consequences.’’
Id., 794. More importantly, however, is the fact that
the canvass in In re Yasiel R. incorporates the notice
required by § 35a-7A, i.e., ‘‘if the respondent does not
intend to testify, he or she should also be advised that
if requested by the petitioner, or the court is so inclined,
the court may take an adverse inference from his or
her failure to testify, and explain the significance of
that inference.’’ Id., 795.
Our review of the notice given by the trial court in
the present case discloses that it was entirely consistent
with the holding of our Supreme Court that the canvass
‘‘be given to all parents involved in a termination trial,
not just those whose attorneys choose not to contest
evidence. Indeed, we require that the canvass be per-
formed at the very start of the termination trial, before
a decision as to whether to challenge evidence has been
communicated to the court. In so doing, the canvass
we require does not single out those parents whose
attorneys have made a tactical decision not to contest
the evidence presented. As a result, the canvass we
require does not interfere with the attorney-client rela-
tionship but serves to inform and protect all parents.’’
(Emphasis in original.) Id., 794.
We find it of particular importance that our Supreme
Court stated that the canvass was not to interfere with
the attorney-client relationship. In the present case, the
court advised the father of his rights before the start
of evidence, at a time when the court was unaware of
the evidence to come before it and, therefore, it was
not in a position to determine whether it intended to
draw an adverse inference if the father decided not to
testify. At the end of the first day of trial, Beltz-Jacobson
informed the court that the father may give ‘‘short testi-
mony.’’ On the second day of trial, however, Beltz-
Jacobson informed the court that she did not have any
witnesses. By giving the canvass set forth in In re Yasiel
R. in the presence of both the father and Beltz-Jacobson
at the start of trial, the court provided the necessary
information that the father and Beltz-Jacobson could
use to plan their trial strategy, free from any suggestion
that the court had a preference as to whether the father
should testify.
It is without question that a parent may not be com-
pelled to testify at a termination of parental rights trial
and need not testify on his or her own behalf. See
Practice Book § 32a-1; In re Samantha C., supra, 268
Conn. 645. It also is without question that parents in a
termination of parental rights proceeding are entitled
to counsel. See Practice Book § 32a-1. Despite claiming
that the court should have advised him that it intended
to draw an adverse inference from his decision not to
testify, the father argues that giving the notice required
by Practice Book § 35a-7A at the start of trial may have
a coercive effect on a parent’s decision whether to
testify. We disagree with the father’s argument, as the
notice provision of Practice Book § 35a-7A strikes a
balance between a parent’s right to remain silent and
the risk that the trial court may draw an adverse infer-
ence from a parent’s decision not to testify. Moreover,
as our Supreme Court recognized, the purpose of for-
mer Practice Book (2001) § 34-1 (a) ‘‘was to enable
parents in termination [of parental rights] proceedings
to make informed choices in structuring their defense.’’
In re Samantha C., supra, 268 Conn. 673. Practice Book
§ 35a-7A has the same purpose. Whether a parent testi-
fies at a termination of parental rights trial is a decision
for the parent to make in consultation with his or her
counsel without the coercive effect of the advisement
for which the father argues. Practice Book § 35a-7A
does not require a second notice; that rule itself pro-
vides notice to a parent that the court may draw an
adverse inference from a parent’s decision not to testify.
Contrary to the father’s argument, a notice provided at
the start of the trial is the least coercive manner of
advising a parent of his or her right to remain silent
and the possible consequences of doing so. At the start
of both the neglect proceeding and the termination trial,
the father was advised of the possible consequences of
his decision not to testify.
The father looks to General Statutes § 52-216c and
State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), to
support his position that the court was required to
advise him that it would draw an adverse inference
from his decision not to testify. Both the statute and
Malave are inapplicable to a termination of parental
rights trial. Section 52-216c and Malave concern jury
instructions and final arguments of counsel permitted
in civil and criminal cases, respectively. Section 52-216c
provides: ‘‘No court in the trial of a civil action may
instruct the jury that an inference unfavorable to any
party’s cause may be drawn from the failure of any
party to call a witness at such trial. However, counsel
for any party to the action shall be entitled to argue to
the trier of fact during closing arguments, except where
prohibited by section 52-174, that the jury should draw
an adverse inference from another party’s failure to
call a witness who has been proven to be available
to testify.’’ Although a termination of parental rights
proceeding is noncriminal in nature; In re Samantha
C., supra, 268 Conn. 673; such cases are tried to the
court, not to a jury. Furthermore, a parent has an
unquestionable right to remain silent in a termination
of parental rights proceeding. There is no such right
in a civil trial subject to § 52-216c. Thus, § 52-216c is
inapplicable in a termination of parental rights trial, as
the statute pertains to jury instructions and the right
of counsel to argue to the finder of fact the absence
of available witnesses who might have been expected
to testify.
Section 52-216c and Malave have their historical roots
in the missing witness rule. As a matter of policy, in
Malave, our Supreme Court abandoned the missing wit-
ness rule of Secondino v. New Haven Gas Co., 147
Conn. 672, 165 A.2d 598 (1960), overruled in part by
State v. Malave, 250 Conn. 722, 739, cert. denied, 528
U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000),12
in criminal cases. State v. Malave, supra, 250 Conn. 739.
A brief review of the Malave decision illustrates why
it is inapplicable to a termination of parental rights
proceeding in which the trial court is the finder of fact.
In Malave, a 1999 decision, our Supreme Court exam-
ined the history of the missing witness rule and its
associated jury instruction in civil and criminal cases.
The court had ‘‘adopted the missing witness rule for civil
cases more than seventy years ago . . . and expressly
approved the rule for use in criminal cases nearly
twenty-five years ago. . . . In 1998, however, the legis-
lature prohibited the use of the missing witness instruc-
tion in civil cases; Public Acts 1998, No. 98-50 . . . .’’13
(Citations omitted.) Id., 729. The court set forth a num-
ber of policy reasons why the missing witness jury
instruction was no longer appropriate in civil or crimi-
nal cases. Id., 730–38. The policy reason most relevant to
the present case concerned jury instructions.14 Malave,
therefore, does not support the father’s position
because jury instructions are not relevant in termination
of parental rights cases and counsel do not argue to
a jury.15
In a termination of parental rights trial, the trial court
is the arbiter of fact and is well aware of the witnesses
and evidence presented by each of the parties. By giving
the notice required by Practice Book § 35a-7A at the
beginning of trial, the trial court puts the respondent
parent on notice that the court may draw an adverse
inference if the parent does not testify. On the basis of
that notice, the parent and his or her counsel can make
a tactical decision regarding the evidence to present
and whether the parent will testify. The notice informs
a parent’s trial strategy at the beginning of the case,
not after the parent has presented his or her evidence,
which is the time at which the court is able to draw an
adverse inference, if at all.16 Consequently, we conclude
that the court properly informed the father of his right
to remain silent and the possibility that the court may
draw an adverse inference if he chose to do so. A second
notice that the court intended to draw such an inference
was not required.17
In response to the father’s claim, the petitioner argues
that, even if we were to conclude that the court was
required to notify the father that it would be drawing
an adverse inference from the father’s failure to testify,
which we do not, any error was harmless in light of
the court’s detailed findings of fact in its memorandum
of decision and its articulation. The petitioner contends
that the trial court’s articulation dispels any notion that
the court’s drawing of an adverse inference from the
father’s decision not to testify was determinative of the
court’s decision to terminate the father’s parental rights
as to his sons. We agree with the petitioner.
The question to consider with respect to harmless
error is whether the claimed erroneous act of the trial
court likely affected the result of the trial. State v. Ledbe-
tter, 41 Conn. App. 391, 399, 676 A.2d 409 (1996), aff’d,
240 Conn. 317, 692 A.2d 713 (1997). ‘‘The interpretation
of a trial court’s judgment presents a question of law
over which our review is plenary. . . . As a general
rule, judgments are to be construed in the same fashion
as other written instruments. . . . The determinative
factor is the intention of the court as gathered from
all parts of the judgment.’’ (Internal quotation marks
omitted.) In re Xavier H., 201 Conn. App. 81, 95, 240
A.3d 1087, cert. denied, 335 Conn. 981, 241 A.3d 705,
and cert. denied, 335 Conn. 982, 241 A.3d 705 (2020).
We have reviewed the court’s factually detailed mem-
orandum of decision and its articulation. The court’s
articulation is in keeping with its memorandum of deci-
sion, which is replete with factual findings and details
regarding the father, the efforts made by the department
to reunify him with the boys, the father’s failure to
comply with the court-ordered steps, his unwillingness
to benefit from services offered to him, and the type
of parenting the boys need due to their special needs.
The court articulated that the father failed to achieve
the degree of rehabilitation which would encourage the
belief that in a reasonable time he could assume a
responsible position in the lives of his sons.18 On appeal,
the father does not challenge any of the court’s factual
findings. We, therefore, agree with the petitioner that
the notice given at the beginning of the termination trial
was proper and that any impropriety was harmless.
II
The father also claims that this court should exercise
its supervisory authority to adopt an advisement for
the trial court to affirmatively notify the father that it
would be drawing an adverse inference upon his deci-
sion not to testify at trial. We decline the father’s invita-
tion to exercise our supervisory authority as the present
case does not present the type of extraordinary circum-
stance for which the exercise of our supervisory power
is intended. ‘‘Supervisory authority is an extraordinary
remedy that should be used sparingly . . . . Although
[a]ppellate courts possess an inherent supervisory
authority over the administration of justice . . . [that]
authority . . . is not a form of free-floating justice,
untethered to legal principle . . . . Our supervisory
powers are not a last bastion of hope for every untena-
ble appeal. They are an extraordinary remedy to be
invoked only when circumstances are such that the
issue at hand, while not rising to the level of a constitu-
tional violation, is nonetheless of utmost seriousness,
not only for the integrity of a particular trial but also
for the perceived fairness of the judicial system as a
whole . . . . Constitutional, statutory and procedural
limitations are generally adequate to protect the rights
of the [litigant] and the integrity of the judicial system.
Our supervisory powers are invoked only in the rare
circumstance [in which] these traditional protections
are inadequate to ensure the fair and just administration
of the courts.’’ (Internal quotation marks omitted.) In
re D’Andre T., 201 Conn. App. 396, 407, A.3d ,
cert. denied, 336 Conn. 902, A.3d (2020). Prac-
tice Book § 35a-7A ensures the fair and just administra-
tion of the courts in termination of parental rights cases.
Consequently, there is no basis for this intermediate
appellate court to exercise its supervisory authority.
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
*** January 13, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The court also terminated the parental rights of the boys’ mother, who
is not a party to this appeal. In this opinion, we refer to her as the mother.
The mother testified at the termination of parental rights trial.
2
Counsel for the boys has adopted the brief filed by the petitioner.
3
The father was aided at trial by a Portuguese speaking interpreter.
4
On September 24, 2019, before the presentation of evidence and in the
presence of the father, the court stated:
‘‘The Court: The court is mandated to provide the parties, the parents,
immediately before trial with a canvass, an advisement, to insure that the
parents understand the trial process, their rights during the trial, and any
potential consequences. And this is what I will advise you of. If there is
anything you don’t understand, please let me know and you can speak with
your attorneys.
‘‘Regarding the termination of parental rights trial that will be commencing
after this advisement, the petitioner has previously filed with this court a
legal document called a termination of parental rights petition, in which
[the petitioner] seeks to have this court permanently end the legal parent-
child relationship between you and Josiah and Jovani. Because [the peti-
tioner] is the one who filed the . . . termination of parental rights petition,
and is the one asking this court to permanently sever your legal relationship
with your children, it is up to [the petitioner] to prove [the] case at a
termination of parental rights trial, which is today by clear and convinc-
ing evidence.
‘‘If [the petitioner] prevails or wins and the trial court grants the termina-
tion of parental rights petition, you will have no legal rights, no authority
and no responsibility for your children. You will no longer have any right
to make decisions of any kind regarding these children, Josiah and Jovani.
You will not be entitled to any state or federal benefits or entitlements on
behalf of the children and the children are free to be adopted only upon
the termination of any of the parental rights.
‘‘A termination of parental rights trial gives you, the parents, an opportu-
nity to defend against the termination of parental rights petition. The termina-
tion of parental rights trial, at the trial anything you say or have said can
and will be used against you. You have the right to remain silent and say
nothing and do nothing which would help [the petitioner] prove [the] case.
You have the right, if you choose, to tell the judge your side of the story
and it’s called testifying on your own behalf. You have the right to confront
and cross-examine witnesses and/or evidence meaning the state will call
their witnesses and you can challenge those witnesses. You can ask questions
through your attorney of those witnesses to cause them to prove the truthful-
ness of the evidence that they’re putting forth. And again, you can call
witnesses on your own behalf and provide documents through your attor-
neys. . . .
‘‘As I just stated, your decision to testify or not testify at this termination
of parental rights trial is yours to make. However, if you choose not to
testify whether fully at the trial or any other partial hearing, the trial
judge may draw an adverse inference, which means it could be held against
you. It could be looked at negatively, and it could actually help [the petition-
er’s] case if you choose not to testify. Also, such an adverse inference, or
a negative consequence, may be that [the petitioner] wins the trial if you
choose not to testify.
‘‘If you do not present any witnesses on your own behalf or do not object
to the testimony or exhibits, the documents that come in through the trial, or
if you do not cross-examine, question the state’s witnesses, [the petitioner’s]
witnesses, the court will decide the case based on the evidence that was
presented at the trial. Do you have any questions? . . .
‘‘The Court: And [Father], do you have any questions, sir?
‘‘[The Father]: No.
‘‘The Court: And do you understand the rights and everything I’ve just
said? . . .
‘‘The Court: [Father?]
‘‘[The Father]: I understood.’’ (Emphasis added.)
5
In her brief on appeal, the petitioner represents that at the start of the
neglect proceeding on May 10, 2018, Judge Ginocchio stated to the father:
‘‘No one could force you to testify at a trial such as this, however, if you
don’t testify, it could be held against you.’’
6
The petitioner also filed petitions to terminate the parental rights of
the mother.
7
In adjudicating the petitions to terminate the mother’s parental rights
as to the boys, the court found, in part, that the mother had an extensive
substance abuse history dating back to 2011. She has been diagnosed with
opiate dependence, cocaine abuse, and alcohol abuse.
8
The adjudication date is the date that the petitioner files a petition for
termination of parental rights. See In re Kylik A., 153 Conn. App. 584, 596,
102 A.3d 141, cert. denied, 315 Conn. 902, 104 A.3d 106 (2014).
9
General Statutes § 17a-112 (k) provides in relevant part that, except in
cases in which a parent consents to termination of his or her parental rights,
‘‘in determining whether to terminate parental rights under this section, the
court shall consider and shall make written findings regarding: (1) The
timeliness, nature and extent of services offered, provided and made avail-
able to the parent and the child by an agency to facilitate the reunion of
the child with the parent; (2) whether the Department of Children and
Families has made reasonable efforts to reunite the family pursuant to the
federal Adoption and Safe Families Act of 1997, as amended . . . (3) the
terms of any applicable court order entered into and agreed upon by any
individual or agency and the parent, and the extent to which all parties have
fulfilled their obligations under such order; (4) the feelings and emotional
ties of the child with respect to the child’s parents . . . and any person
who has exercised physical care, custody or control of the child for at least
one year and with whom the child has developed significant emotional ties;
(5) the age of the child; (6) the efforts the parent has made to adjust such
parent’s circumstances, conduct, or conditions to make it in the best interest
of the child to return such child home in the foreseeable future, including,
but not limited to, (A) the extent to which the parent has maintained contact
with the child as part of an effort to reunite the child with the parent . . .
(B) the maintenance of regular contact or communication with the . . .
custodian of the child; and (7) the extent to which a parent has been
prevented from maintaining a meaningful relationship with the child by
the unreasonable act or conduct of the other parent of the child, or the
unreasonable act of any other person or by the economic circumstances of
the parent.’’
10
The petitioner asked the court to articulate the following five ques-
tions:’’1. In stating the court takes an adverse inference with regard to [the]
father . . . did the trial court mean that it was drawing an adverse inference
against [the father] pursuant to In re Samantha C. on the basis that he did
not testify at trial?
‘‘2. If so, what weight did the court give the adverse inference, particularly
as it relates to the evidence the [petitioner] presented at trial regarding [the
father’s] failure to regularly visit the [boys], failure to engage in recom-
mended services . . . and failure to learn how to meet the [boys’] special-
ized needs? . . .
‘‘3. With respect to the efforts element: If the court had not drawn an
adverse inference, would it nonetheless have found by clear and convincing
evidence that [the father] was unwilling to benefit from the department’s
reasonable reunification efforts, given that [the] father refused to cooperate
with [the department] and did not consistently attend the visitations he
was offered and failed to complete recommended services for parenting
education and intimate partner violence? . . .
‘‘4. With respect to the adjudicatory element: If the court had not drawn an
adverse inference, would it nonetheless have found by clear and convincing
evidence that [the father] had failed to rehabilitate, given that he failed to
engage in the services offered to him, is unable to meet the developmental,
emotional, educational, and moral needs of [the boys], and cannot and will
not provide for the [boys’] safe shelter, nurturance, and security? . . .
‘‘5. With respect to the best interests element: If the court had not drawn an
adverse inference, would it nonetheless have found by clear and convincing
evidence that termination of parental rights was in the best interests of the
minor [boys], given the [boys’] respective ages, their specialized needs, the
[father’s] inability to meet those needs, and the [boys’] need for permanent
loving homes?’’ (Citations omitted; internal quotation marks omitted.)
11
As noted in footnote 5 of this opinion, Judge Ginocchio provided the
notice required by Practice Book § 35a-7A to the father at the neglect pro-
ceeding.
12
In Secondino, our Supreme Court stated that ‘‘[t]he failure of a party
to produce a witness who is within his power to produce and who would
naturally have been produced by him, permits the inference that the evidence
of the witness would be unfavorable to the party’s cause.’’ (Internal quotation
marks omitted.) Secondino v. New Haven Gas Co., supra, 147 Conn. 675.
‘‘[T]he jury charge explaining the rule commonly is referred to as the Sec-
ondino instruction or the missing witness instruction.’’ State v. Malave,
supra, 250 Conn. 724 n.2.
13
The act was codified at § 52-216c. ‘‘The statement of purpose of the
legislation abolishing the missing witness rule in civil cases was ‘[t]o overrule
the decision of [our] Supreme Court in Secondino . . . and its progeny
which results in longer trials with additional witnesses.’ ’’ (Emphasis omit-
ted.) State v. Malave, supra, 250 Conn. 737 n.14; see footnote 12 of this
opinion.
14
The court was concerned about the influence a missing witness instruc-
tion may have on the jury. ‘‘[T]he risk that the jury will give undue weight
to a witness’ absence is further enhanced because, under the Secondino
rule, the trial court expressly instructs the jury that it may draw an adverse
inference from the party’s failure to call the witness. [T]here is a difference
between what the jury might infer on its own, which can never be completely
controlled, and what the jury might think when the absence of certain
evidence is highlighted by . . . the judge’s instructions.’’ (Internal quotation
marks omitted.) State v. Malave, supra, 250 Conn. 735.
15
In abandoning the Secondino rule, our Supreme Court did ‘‘not prohibit
counsel from making appropriate comment, in closing arguments, about the
absence of a particular witness, insofar as that witness’ absence may reflect
on the weakness of the opposing party’s case.’’ State v. Malave, supra, 250
Conn. 739. ‘‘Fairness, however, dictates that a party who intends to comment
on the opposing party’s failure to call a certain witness must so notify the
court and the opposing party in advance of closing arguments. Advance
notice of such comment is necessary because comment on the opposing
party’s failure to call a particular witness would be improper if that witness
were unavailable due to death, disappearance or otherwise. That notice will
ensure than an opposing party is afforded a fair opportunity to challenge
the propriety of the missing witness comment in light of the particular
circumstances and factual record of the case.’’ Id., 740.
16
In his brief, the father relies on dicta in In re Jason B., 137 Conn. App.
408, 48 A.3d 676 (2012), that he has taken out of context. The father and
the respondent in In re Jason B. both correctly noted that a trial court
‘‘must inform a respondent if it intends to draw an adverse inference from
his or her decision not to testify.’’ Id., 414. Immediately following that rule
of law, this court stated: ‘‘See Practice Book § 35a-7A (‘[i]f a party requests
that the judicial authority draw an adverse inference from a parent’s or
guardian’s failure to testify or the judicial authority intends to draw an
adverse inference, either at the start of any trial or after the close of the
petitioner’s case-in-chief, the judicial authority shall notify the parents or
guardian that an adverse inference may be drawn from their failure to
testify’).’’ Id., 414–15. The notice given by the court in the present case is
consistent with the notice required, i.e., ‘‘an adverse inference may be drawn
. . . .’’ Practice Book § 35a-7A. In re Jason B. does not support the father’s
contention on appeal.
17
Requiring a second notice also is inadvisable for another more pragmatic
reason. Judges presiding at a court side trial generally do not determine
what evidence to credit or what inferences to draw until all the evidence
has been presented. A judge typically reviews all of the evidence, frequently
reading transcripts of the proceeding and/or reviewing his or her notes and
carefully considers the legal and factual issues presented, as well as the
practical ramifications of a decision and their effect on the litigants. Conse-
quently, we expect that in most termination of parental rights cases, the
judge is unlikely to be prepared to say, during the presentation of evidence,
much less at the start of evidence, before the intense deliberative process
commences, that he or she has decided to draw an adverse inference because
a parent has decided not to testify. In the present case, the father is proposing
a rule that would require a judge to opine prematurely on a matter of great
importance. We are not prepared to create such a rule.
18
The father contends that the court’s failure to advise him that it would
be drawing an adverse inference for his failure to testify was harmful,
because had he known of the adverse inference, he would have offered
noncumulative testimony. This argument comes a bit late. The father did
not file a motion to open the judgment or for reconsideration. The father
has not provided a proffer of what his testimony might have been nor has
he explained why he did not voluntarily offer it at trial, and how it would
have affected any of the court’s factual findings.