In re Ivory W.

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IN RE IVORY W. ET AL.*
(SC 20624)
Robinson, C. J., and D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The respondent mother appealed from the judgments of the trial court
terminating her parental rights with respect to her minor children, I and
D. The petitioner, the Commissioner of Children and Families, had filed
petitions to terminate the respondent’s parental rights after she admitted
that she had sent sexually explicit photographs of I to several persons
and after the children were adjudicated neglected, committed to the
petitioner’s custody, and placed in a preadoptive foster home. During
the proceedings on the petitions, the respondent filed four separate
motions for a continuance of the termination proceedings, asserting,
inter alia, that a continuance was required so that she could testify in
defense of the termination of her parental rights without jeopardizing
her fifth amendment right to avoid incriminating herself in connection
with a pending federal criminal proceeding in which she had been
charged with certain federal crimes related to her distribution of the
photographs of I. The trial court granted the first three motions, but
denied the fourth. Following the termination trial, at which the respon-
dent did not testify and the trial court did not draw any adverse inference
against her due to her silence, the court rendered judgments terminating
her parental rights. With respect to both petitions, the court found
that the petitioner proved by clear and convincing evidence that the
respondent had failed to achieve a sufficient degree of personal rehabili-
tation, as required by the applicable statute (§ 17a-112 (j) (3) (B) (i)).
With respect to the petition related to I, the court additionally found
that, as the result of the respondent’s conduct in distributing the sexually
explicit photographs of I, I had been denied the care, guidance, or
control necessary for that child’s well-being for purposes of § 17a-112
(j) (3) (C). The court further found that the petitioner had established
that the seven factors set forth in § 17a-112 (k) weighed in favor of
terminating the respondent’s parental rights and that doing so was in
the children’s best interests. On appeal, the respondent claimed, inter
alia, that her right to due process was violated when the trial court
denied her fourth motion for a continuance pending the conclusion of
the federal criminal proceeding. Held:
1. The respondent was not deprived of her due process rights under the
federal and state constitutions by virtue of the trial court’s denial of
her motion for a continuance of the termination proceeding:
a. The trial court correctly determined that it was not required to grant
the respondent’s motion for a continuance under the due process clause
of the fourteenth amendment to the United States constitution: this court
clarified that the specific analytical framework of the United States
Supreme Court’s ‘‘penalty’’ cases, in which that court concluded that
certain penalties for remaining silent are severe enough to constitute
compulsion to speak and violate the fifth amendment privilege against
self-incrimination, governed this court’s analysis; in the present case,
the respondent did not suffer an automatic severe penalty, or even the
penalty of an adverse inference, as a direct consequence of her decision
not to testify at the termination proceeding, because the trial court’s
judgments terminating her parental rights were based exclusively on the
petitioner’s clear and convincing evidence that, with respect to both
children, the respondent had failed to rehabilitate and that, with respect
to I specifically, that child had been denied the care, guidance, or control
necessary for her well-being, and the respondent was not prevented from
presenting evidence in her own defense; moreover, the respondent did
not cite to any case in which a court had concluded that, when the
interests at stake in a civil proceeding are sufficiently important, such
as in the respondent’s termination proceeding, the frustration of an
individual’s desire to testify in his or her own defense as a result of the
individual’s choice to invoke the fifth amendment is a sufficiently severe
penalty to constitute compulsion under the fifth amendment.
b. The respondent could not prevail on her claim that the trial court had
violated her due process rights under the state constitution (art. I, §§ 8
and 10) when it denied her motion for a continuance; this court consid-
ered the factors set forth in State v. Geisler (222 Conn. 672) for construing
state constitutional provisions and concluded that none of those factors
supported the respondent’s claim, as federal and state case law did not
favor the respondent’s position, the respondent had not explained why,
under the specific circumstances of this case, the text of article first,
§§ 8 and 10, warranted a broader reading, it was against public policy
to allow children to remain in foster care for lengthy periods without
achieving permanency, and, although the fundamental right of parents
to raise their children had deep roots in Connecticut history and is
entitled to heightened due process protections, it did not necessarily
follow that the state constitution provided broader protections with
respect to the right to family integrity than the federal constitution.
2. The trial court did not abuse its discretion in denying the respondent’s
motion for a continuance: it was not unreasonable for that court to
conclude that the interests of the children and the petitioner in having
the matter resolved as soon as reasonably possible outweighed the
respondent’s interest in postponing the matter so that she could testify
because, although granting the continuance would have allowed the
respondent to testify in her own defense at a proceeding involving her
fundamental liberty interest in parenting her children, that consideration
had to be weighed against the countervailing facts that, at the time the
respondent filed her motion, she had previously filed three motions for
a continuance, which the trial court granted, the termination of parental
rights trial already had been delayed for eighteen months, the children,
who were then five and seven years old, had been in the petitioner’s
custody for more than three years and in a preadoptive foster home for
more than two years, and the respondent sought an indefinite postpone-
ment, all of which impacted the children’s important need for perma-
nency; moreover, although the respondent contended that the children’s
needs were entitled to little or no weight because, at the time she filed
her fourth motion for a continuance, the children were thriving in their
foster home and presumably would have continued to do so during the
period that the trial was delayed, a sense of permanency is crucial to
a child’s welfare, and delaying the trial indefinitely would have resulted
in keeping the respondent’s very young children in a state of limbo
indefinitely; furthermore, it was not unreasonable for the court to con-
sider the seriousness of the neglect allegations and the weight of the
evidence supporting them in determining whether to grant the motion
for a continuance, and, in the absence of any offer of proof as to the
substance of the testimony that the respondent would have presented
if a continuance were granted or any claim that her testimony could
affect the outcome of the termination proceeding, the trial court was
not required to grant the motion.
3. This court declined to exercise its supervisory authority over the adminis-
tration of justice to require trial courts to grant a respondent’s motion
for a continuance of a termination of parental rights proceeding when-
ever the respondent has invoked his or her fifth amendment privilege
against self-incrimination in connection with a related criminal proceed-
ing, as such a rule was not required to ensure the fairness and integrity
of the judicial system and would deprive trial courts of their ability to
consider the fairness of their rulings by eliminating their discretion.
Argued December 13, 2021—officially released March 31, 2022**
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 Middlesex, Juvenile Mat-
ters at Middletown, where the court, Sanchez-Figueroa,
J., denied the respondent mother’s motion for a continu-
ance; thereafter, the case was tried to the court, San-
chez-Figueroa, J.; judgments terminating the respon-
dents’ parental rights, from which the respondent
mother appealed. Affirmed.
Dana M. Hrelic, with whom were Johanna S. Katz
and, on the brief, Michael S. Taylor, for the appellant
(respondent mother).
Evan O’Roark, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Frank LaMonaca, Nisa Khan, and Jillian
Hira, assistant attorneys general, for the appellee (peti-
tioner).
Opinion
KELLER, J. The primary issue before us in this appeal
is whether the trial court violated the constitutional
due process rights of the respondent mother, Amber
F.,1 when it denied her motion for a continuance of
the trial on petitions to terminate her parental rights
pending the conclusion of a related criminal proceeding
on the ground that she could not testify in her own
defense in the termination proceeding without jeopard-
izing her fifth amendment right to avoid incriminating
herself in the criminal proceeding. The petitioner, the
Commissioner of Children and Families, filed these peti-
tions to terminate the respondent’s parental rights with
respect to her children, Ivory W. and Darrick B., after
the respondent admitted that she had sent explicitly
sexual photographs of Ivory W. to several persons,
including an individual who was a registered sex
offender. The respondent was indicted in federal court
on charges of distributing child pornography on the
basis of the same conduct. During the proceedings on
the petitions, the respondent filed four motions for a
continuance of the trial, contending, among other things,
that a continuance was required so that she could testify
in defense of the termination of her parental rights
without jeopardizing her fifth amendment right to avoid
incriminating herself in the criminal proceeding. The
trial court granted the first three motions, but denied
the last one. After the trial, the trial court rendered judg-
ments terminating the respondent’s parental rights.2
This appeal followed.3
The respondent claims that the trial court’s denial of
her motion for a continuance violated her due process
right to present a defense to the termination of her
parental rights under the federal and state constitutions.
The respondent further claims that, if this court deter-
mines that the denial of her motion for a continuance
was constitutional, the denial was an abuse of discre-
tion. Finally, the respondent claims that, if this court
determines that the denial of her motion for a continu-
ance was neither unconstitutional nor an abuse of dis-
cretion, this court should exercise its supervisory author-
ity over the administration of justice to direct our trial
courts to grant motions for a continuance of termination
of parental rights proceedings whenever related crimi-
nal proceedings against the parent are pending. We
reject the respondent’s claims and affirm the judgments
of the trial court.
The record reveals the following relevant procedural
history and facts. On October 2, 2017, the Department of
Children and Families (department) received a referral
from the Hartford Police Department indicating that it
had received a report from an individual that he had
received sexually explicit photographs of a child from
the respondent. The individual reported that he had
met the respondent on a dating website and that they
had been having explicit sexual conversations with each
other for several days. On this particular day, the
respondent had sent him photographs of her breasts
and her vagina. In addition, the respondent had sent
him photographs showing the vagina of a child, later
determined to be Ivory, who was then four years old.
The individual reported the matter because he was a
registered sex offender and was worried that he might
be criminally implicated.
On October 3, 2017, a social worker and a social work
investigator employed by the department and several
Meriden police detectives went to the respondent’s resi-
dence in response to the referral. The respondent admit-
ted to them that she had sent photographs of Ivory’s
vagina to multiple persons by cellphone. The respon-
dent also indicated that she had photographs of then
two year old Darrick’s genitalia on her cellphone but
denied sharing them with anyone.
During the October 3, 2017 visit, the social worker
observed that the respondent’s residence was extremely
dirty and unkempt. The floors were dirty, and there
were overflowing garbage bags on the kitchen floor,
causing a strong odor to permeate the apartment, and
bugs crawling on the countertops, walls, and ceiling.
The children also were dirty and had a strong odor.
On October 12, 2017, the petitioner filed ex parte
motions for orders of temporary custody and neglect
petitions on behalf of Ivory and Darrick, which the trial
court granted. On October 20, 2017, the court sustained
the orders of temporary custody at a hearing at which
the respondent appeared and ordered preliminary spe-
cific steps to be taken by the respondent to regain
custody of her children.
On January 23, 2018, the court adjudicated the chil-
dren neglected and committed them to the care and
custody of the petitioner. The respondent entered a plea
of nolo contendere and did not contest the commitment.
The court also ordered final specific steps4 and a psy-
chological examination of the respondent.
After the initial removal of the children, the depart-
ment referred the respondent to a licensed clinical
social worker for individual therapy. The respondent
was discharged within two weeks for failing to comply
with the therapist’s cancellation policy. When the
department subsequently referred the respondent to
another service provider for individual therapy and a
psychosexual evaluation in accordance with the court-
ordered specific steps, the respondent again missed
numerous appointments and was unable to focus during
the sessions that she did attend. She was therefore
discharged from that treatment program.
On August 30, 2018, the trial court conducted a hear-
ing on the petitioner’s proposal for a permanency plan
of termination of parental rights and adoption for the
children.5 Although the respondent did not agree with
the plan, she indicated through counsel that she was
reserving her defenses for trial. After reviewing the
department’s social study in support of the plan, the
court, on that same date, approved the permanency
plan, finding that it would be in the best interests of
the children. On December 7, 2018, the children were
placed in a preadoptive foster home.
Later that month, on December 12, 2018, the peti-
tioner filed petitions seeking to terminate the respon-
dent’s parental rights as to Ivory and Darrick. Both
petitions alleged that the children had been found to
have been neglected, abused, or uncared for in a prior
proceeding and that the respondent had failed to
achieve such degree of personal rehabilitation as would
encourage the belief that, within a reasonable time, she
could assume a responsible position in the life of her
children. See General Statutes § 17a-112 (j) (3) (B) (i).
The petition regarding Ivory also alleged that she had
been denied the care, guidance, or control necessary
for her physical, educational, moral, or emotional well-
being by reason of the respondent’s acts of commission,
including sexual exploitation.6 See General Statutes
§ 17a-112 (j) (3) (C). The trial court scheduled a trial
on the termination petitions for May, 2019. Meanwhile,
in December, 2018, the respondent was indicted in fed-
eral court on charges of engaging in sexually explicit
conduct for the purposes of producing sexually explicit
images of children that were then transmitted to others
in violation of 18 U.S.C. § 2251 (a)7 and distributing child
pornography in violation of 18 U.S.C. § 2252A (a) (2).8
Three days before the scheduled trial date, the
respondent’s counsel filed a motion to withdraw and a
motion for a continuance to allow the court to appoint
new counsel. The court granted both motions. Two
months later, on July 18, 2019, the trial court again
approved the permanency plan of termination of paren-
tal rights and adoption on the basis of an updated social
study from the department.9 The court rescheduled trial
for August, 2019.
One week before the August, 2019 trial date, the
respondent filed a second motion for a continuance in
which she requested that the court reschedule the trial
to a date after her criminal trial, which, according to
the respondent, was scheduled for November, 2019.
The respondent contended that the continuance was
necessary so that she could testify in her own defense at
the termination proceeding, as required by due process,
while preserving her fifth amendment privilege against
self-incrimination in connection with the criminal pro-
ceeding. The petitioner objected to the motion on the
ground that it was unclear when the criminal trial would
take place and that it would be detrimental to the chil-
dren, who had been in foster care nearly two years, to
delay a final disposition. The children’s attorney also
objected to the motion for a continuance out of concern
that the children required permanency. The trial court
initially denied the motion but, upon the respondent’s
motion for reconsideration, reversed itself, granted the
motion, and rescheduled the trial for December 10,
2019.
On December 6, 2019, the respondent moved for a
third continuance on the same ground as that asserted
in the previous motion. The trial court granted the
motion but indicated that it would not entertain any
further continuance requests. The court ultimately
scheduled the trial for June 9, 2020. The trial was post-
poned, however, because of the COVID-19 pandemic,
as was the criminal proceeding in federal court, and
the trial court scheduled a new trial date of January 5,
2021. During that delay, the court approved for a third
time the permanency plan of termination of parental
rights and adoption for the children. The children’s
attorney indicated that she agreed with the permanency
plan and that she thought that it was in the best interests
of the children, noting in her court filing that the chil-
dren were ‘‘comfortable and happy’’ in their foster
home, they had become part of the family, and they
wanted ‘‘the case to be closed so people do not have
to ask them questions all the time.’’ She also noted that
the ‘‘trial ha[d] been scheduled/pending for about [one]
year, and it [was] in the best interest[s] of the children
to schedule the trial as soon as possible.’’
On December 30, 2020, the respondent filed a fourth
motion for continuance in which she contended that
her federal criminal trial had been continued indefi-
nitely due to the COVID-19 pandemic, that she was
prohibited from using any computer devices, making
her ability to participate in a remote trial extremely
difficult, and that her counsel required additional time
to ensure that the respondent could participate. The
trial court denied the respondent’s motion and pro-
ceeded with the trial. By that time, the children had
been in the petitioner’s custody for more than three
years and in the preadoptive foster home for more than
two years.
At the outset of the trial on January 5, 2021, the trial
court advised the respondent of her rights, including
her right to testify ‘‘to tell [her] side of the story to the
court . . . .’’ The court warned the respondent, how-
ever, that, if she chose not to testify, the court could
draw an adverse inference against her. The petitioner’s
counsel then indicated that he did not intend to request
an adverse inference if the respondent declined to tes-
tify, and the court ultimately did not draw any adverse
inference against the respondent due to her silence.
After the advisement, the respondent’s counsel
renewed the respondent’s objection to proceeding with
the trial while her criminal case was pending. Counsel
reiterated that doing so would either violate the respon-
dent’s due process rights if she declined to testify in
order to preserve her fifth amendment rights in the
criminal proceeding or jeopardize her fifth amendment
rights if she chose to testify. The trial court noted the
objection and proceeded with the trial.
At trial, a department investigator testified that the
respondent had confirmed to the investigator, at the
time that the children were removed from the respon-
dent’s custody, that she had distributed pornographic
photographs of Ivory. Other evidence established that
the respondent admitted to federal agents and Meriden
police detectives that she had taken sexually explicit
photographs of Ivory and sent them to multiple men
over the Internet. The petitioner also presented evi-
dence that the respondent had failed to comply with
her specific steps, including the requirement that she
sign releases allowing the department to communicate
with service providers to monitor her attendance, coop-
eration, and progress toward identified goals. Specifi-
cally, the respondent refused to sign a release allowing
the department to communicate with a therapist with
whom she claimed to have been in treatment since 2018.
In addition, the petitioner presented evidence that the
children remained in the preadoptive foster home
where they had been placed at the end of 2018 and that
they were doing well there. The respondent did not
testify at trial, but she presented a stipulation of fact
specifying the criminal charges that were pending
against her in federal court and a handwritten statement
in which she stated that she loved her children.10 She
called no witnesses.
In its memorandum of decision, the trial court found
with respect to both termination petitions that the peti-
tioner had proved by clear and convincing evidence that
the respondent had failed to rehabilitate for purposes
of § 17a-112 (j) (3) (B) (i). In addition, with respect to
the termination petition related to Ivory, the court found
that, as the result of the respondent’s conduct in distrib-
uting sexually explicit photographs of Ivory, the child
had been denied the care, guidance, or control neces-
sary for her well-being for purposes of § 17a-112 (j) (3)
(C). The court further found that the petitioner had
established that the seven factors set forth in § 17a-112
(k)11 weighed in favor of terminating the respondent’s
parental rights and that doing so was in the best inter-
ests of the children. Accordingly, the court granted the
petitions for termination of the respondent’s parental
rights.
Several weeks after the trial court issued its memo-
randum of decision, the respondent pleaded guilty in
federal court to charges of distributing child pornogra-
phy in violation of 18 U.S.C. § 2252A (a) (2). After the
plea, she was remanded to federal detention, and, at
sentencing, she faced a ‘‘binding incarceration range’’
of sixty to ninety months. This appeal followed.
The respondent claims that (1) the trial court
deprived her of her due process right to a fair trial
under both the federal and state constitutions when it
denied her motion for a continuance of the termination
of parental rights proceeding until the conclusion of
the criminal proceeding, (2) if this court determines
that the trial court did not violate her constitutional
rights, the trial court abused its discretion when it
denied the motion for a continuance, and (3) if this
court determines that the trial court neither deprived
her of her due process rights nor abused its discretion,
this court should exercise its supervisory authority to
require our trial courts to grant motions for a continu-
ance in termination of parental rights proceedings when
related criminal charges against the parent are pending.
We reject all of these claims and affirm the judgments
of the trial court.
I
We first address the respondent’s claim that the trial
court deprived her of her due process right to a fair
trial under the federal and state constitutions when it
denied her motion for a continuance of the termination
of parental rights proceeding until the conclusion of the
federal criminal proceeding. Specifically, the respondent
contends that the denial of her motion for a continuance
unconstitutionally ‘‘precluded [her] from presenting a
defense to the termination petition[s] because she was
forced to exercise her [fifth amendment privilege against
self-incrimination] in light of the concurrently pending
criminal charges.’’ We conclude that the respondent
was not deprived of her due process rights under either
the federal or the state constitution.
A
We begin with the respondent’s claim under the fed-
eral constitution. This claim presents a question of law
over which our review is plenary. See, e.g., State v.
Collymore, 334 Conn. 431, 477, 223 A.3d 1, cert. denied,
U.S. , 141 S. Ct. 433, 208 L. Ed. 2d 129 (2020).
At the outset, we review the governing constitutional
principles. It is well established that ‘‘[t]he fifth amend-
ment12 privilege against self-incrimination not only pro-
tects the individual against being involuntarily called
as a witness against himself in a criminal prosecution
but also privileges him not to answer official questions
put to him in any other proceeding, civil or criminal,
formal or informal, [when] the answers might incrimi-
nate him in future criminal proceedings.’’ (Footnote
added; internal quotation marks omitted.) In re Saman-
tha C., 268 Conn. 614, 634, 847 A.2d 883 (2004). Although
a defendant has the right to refuse to testify in a civil
proceeding when doing so might be incriminatory, ‘‘[a]
defendant has no absolute right not to be forced to
choose between testifying in a civil matter and asserting
his [f]ifth [a]mendment privilege.’’ Keating v. Office of
Thrift Supervision, 45 F.3d 322, 326 (9th Cir.), cert.
denied, 516 U.S. 827, 116 S. Ct. 94, 133 L. Ed. 2d 49(1995); see also McKune v. Lile, 536 U.S. 24, 41, 122 S.
Ct. 2017, 153 L. Ed. 2d 47 (2002) (‘‘[a]lthough a defendant
may have a right, even of constitutional dimensions, to
follow whichever course he chooses, the [c]onstitution
does not by that token always forbid requiring him to
choose’’ (internal quotation marks omitted)); Tyler v.
Shenkman-Tyler, 115 Conn. App. 521, 526–27, 973 A.2d
163 (‘‘[s]o long as the defendant is neither forced to
exercise nor prevented from exercising his right to tes-
tify, the right to present a defense is not burdened by
the strategic choice or resulting adverse consequences’’
(internal quotation marks omitted)), cert. denied, 293
Conn. 920, 979 A.2d 493 (2009); State v. Easton, 111
Conn. App. 538, 543, 959 A.2d 1085 (2008) (‘‘[t]he fact
that the defendant had to make a difficult choice
between [his fifth amendment right not to incriminate
himself and his due process right to testify in his own
defense] does not deprive him of due process’’), cert.
denied, 290 Conn. 916, 965 A.2d 555 (2009). Put another
way, the fact that there may be adverse consequences
when a defendant invokes the fifth amendment in a
civil proceeding does not necessarily mean that the
defendant is subject to unlawful compulsion for fifth
amendment purposes. See McKune v. Lile, supra, 31,
45 (when inmate convicted of rape refused to sign
admission of guilt form as condition of participating in
sexual abuse treatment program on ground that doing
so could lead to charges of perjury, resulting reduction
of inmate’s privileges and his transfer to facility with
poorer living conditions did not constitute compulsion
for fifth amendment purposes); Baxter v. Palmigiano,
425 U.S. 308, 317–18, 96 S. Ct. 1551, 47 L. Ed. 2d 810(1976) (when prison disciplinary board drew adverse
inference from inmate’s invocation of fifth amendment
rights at disciplinary proceeding, board’s action did not
constitute ‘‘an invalid attempt by the [s]tate to compel
testimony’’). Accordingly, ‘‘the [c]onstitution . . .
does not ordinarily require a stay of civil proceedings
pending the outcome of criminal proceedings.’’ (Inter-
nal quotation marks omitted.) Kashi v. Gratsos, 790
F.2d 1050, 1057 (2d Cir. 1986); accord Securities &
Exchange Commission v. Dresser Industries, Inc., 628
F.2d 1368, 1375 (D.C. Cir.), cert. denied, 449 U.S. 993,
101 S. Ct. 529, 66 L. Ed. 2d 289 (1980); see also United
States Commodity Futures Trading Commission v.
A.S. Templeton Group, Inc., 297 F. Supp. 2d 531, 534
(E.D.N.Y. 2003) (‘‘[e]ven [when] there are parallel crimi-
nal and civil proceedings, a defendant [ordinarily] has
no constitutional right to a stay pending the outcome
of a related criminal case’’); State v. Easton, supra, 111
Conn. App. 543 (trial court did not violate defendant’s
due process rights by conducting probation and drug
dependency hearings before defendant’s trial on related
pending criminal charge).
There are limits, however, to the general rule that an
individual constitutionally may be required to choose
between accepting the consequences of testifying at a
civil trial—namely, the potential for self-incrimina-
tion—and accepting the consequences of invoking his
or her fifth amendment right to remain silent. The
United States Supreme Court has held that ‘‘a [s]tate
may not impose substantial penalties because a witness
elects to exercise his [f]ifth [a]mendment right not to
give incriminating testimony against himself.’’ (Empha-
sis added.) Lefkowitz v. Cunningham, 431 U.S. 801,
805, 97 S. Ct. 2132, 53 L Ed. 2d 1 (1977); see also In re
Samantha C., supra, 268 Conn. 662 (‘‘certain severe
penalties may not be imposed as the cost of asserting
one’s constitutional fifth amendment privilege to remain
silent’’ (emphasis added)). Thus, ‘‘one cannot answer
the question whether [a] person has been compelled to
incriminate himself without first considering the sever-
ity of the consequences.’’13 McKune v. Lile, supra, 536
U.S. 44.
‘‘[T]here have been several instances in which the
[United States Supreme Court] has held that certain
penalties, even those outside the criminal context, are
severe enough to constitute compulsion to speak. See,
e.g., Lefkowitz v. Cunningham, [supra, 431 U.S. 806]
(scheme under which elected [political party] official
who chose to remain silent at grand jury proceedings
was automatically removed from office [and barred
from holding office for five years] violated privilege
against self-incrimination); Lefkowitz v. Turley, 414
U.S. 70, 82–83, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973)
(scheme under which contractor who remained silent at
grand jury proceeding was [automatically] disqualified
from transacting with state violated privilege against
self-incrimination); Uniformed Sanitation Men Assn.,
Inc. v. Commissioner of Sanitation, 392 U.S. 280, 284–
85, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968) (scheme
under which state workers’ refusal to sign waivers of
immunity automatically resulted in termination of
employment violated privilege against self-incrimina-
tion); Gardner v. Broderick, 392 U.S. 273, 279, 88 S. Ct.
1913, 20 L. Ed. 2d 1082 (1968) (same); Spevack v. Klein,
385 U.S. 511, 514, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967)
(scheme under which attorney was disbarred for
remaining silent [during disciplinary proceeding] vio-
lated privilege against self-incrimination); Garrity v.
New Jersey, 385 U.S. 493, 497–98, 87 S. Ct. 616, 17
L. Ed. 2d 562 (1967) (police officers’ statements were
compelled and, therefore, inadmissible against them
because officers would have been [automatically] termi-
nated had they remained silent). These cases, also
known as the penalty cases; McKune v. Lile, supra,536 U.S. 50 (O’Connor, J., concurring); stand for the
proposition that certain significant losses, even those
financially oriented and noncriminal in nature, may
nonetheless be severe enough to compel one to speak
within the meaning of the fifth amendment.’’ (Internal
quotation marks omitted.) In re Samantha C., supra,
268 Conn. 661–62.
In the present case, the respondent contends that the
consequence that she incurred as the result of the trial
court’s denial of her motion for a continuance–namely,
her inability to testify in her own defense at the termina-
tion of parental rights proceeding—was at least as
severe a penalty as any of those at issue in the penalty
cases. She points out that ‘‘[t]he rights to conceive and
to raise one’s children have been deemed essential,
basic civil rights of man, and [r]ights far more precious
. . . than property rights. It is cardinal with [the United
States Supreme Court] that the custody, care and nur-
ture of the child reside first in the parents, whose pri-
mary function and freedom include preparation for obli-
gations the state can neither supply nor hinder. The
integrity of the family unit has found protection in the
[d]ue [p]rocess [c]lause of the [f]ourteenth [a]mend-
ment, the [e]qual [p]rotection [c]lause of the [f]our-
teenth [a]mendment, and the [n]inth [a]mendment.’’
(Internal quotation marks omitted.) In re Juvenile
Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d 1313(1983), quoting Stanley v. Illinois, 405 U.S. 645, 651,
92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Moreover, ‘‘[t]he
fundamental liberty interest of natural parents in the
care, custody, and management of their child does not
evaporate simply because they have not been model
parents or have lost temporary custody of their child
to the [s]tate. . . . When the [s]tate moves to destroy
weakened familial bonds, it must provide the parents
with fundamentally fair procedures.’’ Santosky v. Kramer,
455 U.S. 745, 753–54, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982). The respondent contends that, because her fun-
damental constitutional right to raise her children is at
least as important as any of the rights at issue in the
penalty cases, the trial court’s denial of her motion for
a continuance of the termination proceeding pending
the conclusion of the criminal proceeding so that she
could testify at the termination proceeding without
incriminating herself was unconstitutional.
Before addressing the merits of the respondent’s
claim, we pause to clarify the analytical framework
that applies to it. The respondent frames her claim as
implicating her due process right to present a defense
and asks this court to apply the analysis developed in
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47
L. Ed. 2d 18 (1976), in which the United States Supreme
Court ‘‘established a three part test to determine
whether the actions of the court violated a party’s right
to procedural due process.’’14 Foster v. Foster, 84 Conn.
App. 311, 319, 853 A.2d 588 (2004). We agree with the
respondent that her claim implicates due process con-
cerns as the ‘‘flip side’’ of the fifth amendment concerns
implicated by compelled self-incrimination. See Tyler
v. Shenkman-Tyler, supra, 115 Conn. App. 526 (applying
due process analysis to defendant’s claim that his invo-
cation of fifth amendment privilege prevented him from
testifying at dissolution trial); see also State v. Kirby,
280 Conn. 361, 403, 908 A.2d 506 (2006) (‘‘[a] defendant
has a right under the compulsory process [clause of
the sixth amendment] and due process [clause] to pres-
ent [his] version of the facts as well as the prosecution’s
to the jury so [that] it may decide where the truth lies’’
(internal quotation marks omitted)); State v. Easton,
supra, 111 Conn. App. 541 (‘‘The right to testify on one’s
own behalf at a criminal trial has sources in several
provisions of the [c]onstitution. It is one of the rights
that are essential to due process of law in a fair adver-
sary process.’’ (Internal quotation marks omitted.)). It
is clear to us, however, that the dispositive issue before
us is whether the consequences of the respondent’s
invocation of her privilege against self-incrimination
were sufficiently severe to constitute compulsion for
purposes of the fifth amendment. See McKune v. Lile,
supra, 536 U.S. 44 (‘‘one cannot answer the question
whether [a] person has been compelled to incriminate
himself without first considering the severity of the
consequences’’). In other words, if the respondent can
establish that the consequence that she incurred for
invoking the fifth amendment was as severe a penalty as
those imposed in the penalty cases, she would thereby
establish that the trial court’s denial of her motion for
a continuance unconstitutionally deprived her of her
due process right to testify in her own defense. Accord-
ingly, we conclude that the specific analytical frame-
work of the penalty cases governs our analysis, rather
than the more general procedural due process standard
set forth in Mathews v. Eldridge, supra, 424 U.S. 335.
In addressing the question of whether the conse-
quences of the respondent’s invocation of the fifth
amendment at the termination proceeding were suffi-
ciently severe that the trial court was constitutionally
required to grant her motion for a continuance pending
the resolution of the criminal proceeding, we do not
write on a blank slate. In In re Clark K., 70 Conn. App.
665, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806
A.2d 1059 (2002), the Appellate Court addressed the
respondent’s claim that the trial court should not have
proceeded with the termination of parental rights hear-
ing while related criminal charges were pending because
her invocation of the fifth amendment ‘‘prevented her
from fully explaining her actions . . . .’’ Id., 673. The
Appellate Court rejected this claim, concluding, in a
somewhat cursory opinion, that, having chosen to
remain silent at the termination of parental rights pro-
ceeding, the respondent could not then ‘‘complain that
there was not a full and fair hearing based on the prem-
ise that she, herself, did not tell her side of the story.’’
Id., 674.
In In re Samantha C., supra, 268 Conn. 614, this court
considered the respondents’ claim that the trial court
had improperly drawn an adverse inference from their
refusal to testify at the termination of parental rights
proceeding pursuant to Practice Book (2001) § 34-1 (f),
which provided in relevant part that ‘‘[n]o parent . . .
shall be compelled to testify [at a termination of paren-
tal rights proceeding] if the testimony might tend . . .
to establish the validity of the facts alleged in the peti-
tion.’’15 See id., 633–34. The respondents contended that,
‘‘because the fifth amendment forbids an adverse infer-
ence to be drawn against a criminal defendant for elect-
ing not to testify, [Practice Book (2001)] § 34-1 (f) simi-
larly forbade an adverse inference to be drawn . . . .’’
Id., 657. Addressing the respondents’ claim that the
drawing of an adverse inference constituted compul-
sion, this court observed that termination of parental
rights decrees do not fit neatly into either the category
of cases in which courts have held that it is not unconsti-
tutional to force an individual to choose between invok-
ing his fifth amendment right or testifying at a civil
proceeding or the category of penalty cases in which
courts have held that, when the consequences of invok-
ing the fifth amendment at a civil proceeding are suffi-
ciently severe, they constitute unconstitutional compul-
sion. See id., 662. On the one hand, this court observed
that, unlike the consequences at issue in the penalty
cases, ‘‘termination of parental rights proceedings are
not designed to punish parents, but to protect children.’’
(Emphasis in original.) Id., 662–63. On the other hand,
this court recognized that ‘‘the penalty that necessarily
comes with a termination decree is arguably as severe
as the penalties at issue in the penalty cases, for
instance, the loss of one’s employment.’’ (Internal quo-
tation marks omitted.) Id., 663. This court concluded
that, ‘‘[u]nder the [United States] Supreme Court’s prec-
edent . . . the respondents arguably might have had a
right to be free from adverse inferences had they
asserted their right not to testify under the fifth amend-
ment.’’ (Emphasis in original.) Id. Because the respon-
dents had not done so, but had relied only ‘‘on a rule
of practice derived from our state’s already prophylactic
body of juvenile law,’’ this court did not answer the
question of whether the respondents’ constitutional
rights would have been violated if they had invoked the
fifth amendment at trial. Id., 663–64.
In the present case, the respondent contends that In
re Samantha C. supports the proposition that, when a
respondent in a termination of parental rights proceed-
ing has invoked her fifth amendment right not to testify
at trial—as the respondent here did—courts should find
that the consequences of the respondent’s choice are
sufficiently severe to amount to unconstitutional com-
pulsion under the penalty cases. She further contends
that In re Clark K. was wrongly decided because ‘‘[i]t
is flatly at odds’’ with both the penalty cases and In re
Samantha C. We are not persuaded.
Although this court in In re Samantha C. acknowl-
edged the compelling ‘‘interest in remaining the parent
of one’s children’’; In re Samantha C., supra, 268 Conn.
663; we also observed in dictum that ‘‘[t]hat does not
necessarily mean . . . that suffering an adverse infer-
ence in a termination proceeding is . . . unconstitu-
tional under the penalty cases, because those cases
involved an automatic, direct penalty resulting from
the assertion of the constitutional privilege against self-
incrimination; whereas . . . the penalty of an adverse
inference merely added to the weighing process. Put
another way, the adverse inference . . . was one of
many factors considered by the trier of fact; in the
penalty cases, however, the assertion of the fifth amend-
ment privilege was the only factor that led directly to
the penalty.’’ (Emphasis added.) Id., 663 n.45; see also
Baxter v. Palmigiano, supra, 425 U.S. 317–18 (‘‘It is
. . . undisputed that an inmate’s silence in and of itself
is insufficient to support an adverse decision by the
[d]isciplinary [b]oard. In this respect, this case is very
different from the circumstances before the [c]ourt in
the [penalty cases], [in which] refusal to submit to inter-
rogation and to waive the [f]ifth [a]mendment privilege,
standing alone and without regard to the other evi-
dence, resulted in loss of employment or opportunity
to contract with the [s]tate.’’); Tyler v. Shenkman-Tyler,
supra, 115 Conn. App. 530 n.5 (trial court’s denial of
motion for continuance of dissolution proceeding pend-
ing outcome of criminal proceeding on charges of arson
and reckless endangerment arising from destruction by
fire of vacation home owned by defendant’s wife did
not violate due process when ‘‘the defendant’s blanket
refusal to testify at the dissolution trial did not automat-
ically result in his forfeiting the outcome of [that] pro-
ceeding’’ (emphasis added)).
In the present case, not only did the respondent not
suffer an automatic severe penalty—the termination of
her parental rights—as a direct consequence of her
refusal to testify, she did not even suffer the penalty
of an adverse inference.16 Rather, the trial court’s judg-
ments terminating the respondent’s parental rights were
based exclusively on the petitioner’s clear and convinc-
ing evidence that, with respect to both children, the
respondent had failed to rehabilitate and that, as the
result of the respondent’s conduct in distributing sexu-
ally explicit photographs of Ivory, the child had been
denied the care, guidance, or control necessary for her
well-being. Moreover, the respondent was not pre-
vented from presenting evidence in her own defense
and, in fact, did so, albeit somewhat marginally. The
only penalty that the respondent suffered as the result
of her choice to invoke her fifth amendment rights was
her inability to testify in her own defense. Although the
respondent was undoubtedly confronted with a difficult
choice between invoking her fifth amendment rights
and exercising her due process right to testify in her
own defense, she has not cited a single case in which
a court has concluded that, when the interests at stake
in a civil proceeding are sufficiently important, the frus-
tration of an individual’s desire to testify in his or her
own defense as the result of the individual’s choice
to invoke the fifth amendment, in and of itself, is a
sufficiently severe penalty to constitute compulsion
under the fifth amendment.17 Indeed, several of our
sister states have held to the contrary. See Ex parte
K.G., Docket Nos. 2200547, 2200548, 2200549, 2200550,
2200551, 2200552 and 2200553, 2021 WL 2878696, *9
(Ala. Civ. App. July 9, 2021) (rejecting claim that trial
court violated mother’s fifth amendment rights when
it denied her motion to stay of termination of parental
rights proceeding pending conclusion of related crimi-
nal proceedings); Burkett v. Arkansas Dept. of Human
Services, 507 S.W.3d 530, 534 (Ark. App. 2016) (rejecting
claim that trial court violated father’s fifth amendment
rights when it denied his motion to stay termination
of parental rights proceeding pending conclusion of
related criminal proceedings); In re D.P., 327 Ill. App.
3d 153, 160–61,763 N.E.2d 351 (2001) (rejecting claim
that trial court violated father’s fifth amendment rights
when it denied his motion for continuance of termina-
tion of wardship proceeding pending resolution of
related criminal proceeding), appeal denied, 198 Ill. 2d
615, 770 N.E.2d 219 (2002); In re R.B., 832 N.W.2d 375,
379 (Iowa 2013) (rejecting claim that trial court violated
father’s fifth amendment rights when it denied his
motion for continuance of termination of parental rights
proceeding pending conclusion of related criminal pro-
ceeding when state did not ‘‘insist on a course of action
that would interfere with the father’s right against self-
incrimination’’ and termination of parental rights was
supported by ample evidence); In re C.L.R., 211 Mont.
381, 387, 685 P.2d 926 (1984) (rejecting claim that trial
court violated father’s fifth amendment rights when it
denied his motion for stay of termination of parental
rights proceeding pending conclusion of related crimi-
nal proceeding).
These cases find support in the decision of the United
States Supreme Court in McGautha v. California, 402
U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971), in which
the defendant contended that the due process clause
of the fourteenth amendment required the state of Ohio
to bifurcate his capital felony trial into a guilt phase
and a punishment phase. Id., 210–11. Specifically, the
defendant contended that, under the ‘‘single-trial proce-
dure, he could remain silent on the issue of guilt only
at the cost of surrendering any chance to plead his case
on the issue of punishment.’’ Id., 211. The United States
Supreme Court acknowledged that ‘‘[i]t is undeniably
hard to require a defendant on trial for his life and
desirous of testifying on the issue of punishment to
make nice calculations of the effect of his testimony
on the jury’s determination of guilt.’’ Id., 214. The court
observed, however, that the defendant had not been
precluded at trial from presenting evidence relevant to
the issue of sentencing. Id., 219. The court then stated
that, ‘‘[a]ssuming that in this case there was relevant
information solely within [the defendant’s] knowledge,
we do not think the [c]onstitution forbids a requirement
that such evidence be available to the jury on all issues
to which it is relevant or not at all.’’ Id., 220. Accordingly,
the court rejected the defendant’s claim and concluded
that it did not violate due process to require the defen-
dant to choose between (1) testifying in his own defense
on the issue of whether his crime warranted the imposi-
tion of the death penalty and waiving his fifth amend-
ment right on the issue of guilt, and (2) invoking the
fifth amendment to avoid incriminating himself on the
issue of guilt and waiving his right to testify on the
issue of whether the death penalty was warranted. Id.The inability to testify in one’s own defense on the
question of whether the death penalty is warranted is
at least as severe a consequence of invoking the fifth
amendment as the inability to testify in one’s own
defense on the issue of whether one’s parental rights
should be terminated. We therefore reject the respon-
dent’s claim that her inability to testify at the termina-
tion of parental rights proceeding was a sufficiently
severe consequence of invoking her fifth amendment
right to constitute compulsion. Accordingly, we con-
clude that the trial court correctly determined that it
was not required to grant her motion for a continuance
of the termination proceeding under the due process
clause of the fourteenth amendment to the United
States constitution.
B
We next address the respondent’s claim that the trial
court violated the due process provisions of the state
constitution; see Conn. Const. art. I, §§ 8,18 and 10;19
when it denied her motion for a continuance of the
termination of parental rights proceeding pending the
conclusion of the criminal proceeding in federal court.20
We disagree.
It is well established that ‘‘federal constitutional . . .
law establishes a minimum national standard for the
exercise of individual rights and does not inhibit state
governments from affording higher levels of protection
for such rights.’’ (Internal quotation marks omitted.)
State v. Lockhart, 298 Conn. 537, 546, 4 A.3d 1176 (2010).
When the claimed state constitutional right ‘‘is absent
from the plain text of our constitution, we must employ
[t]he analytical framework by which we determine
whether, in any given instance, our state constitution
affords broader protection to our citizens than the fed-
eral constitutional minimum . . . .’’ (Internal quotation
marks omitted.) Id.‘‘In State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992), we enumerated the following six factors
to be considered in construing the state constitution:
(1) persuasive relevant federal precedents; (2) the text
of the operative constitutional provisions; (3) historical
insights into the intent of our constitutional forebears;
(4) related Connecticut precedents; (5) persuasive prec-
edents of other state courts; and (6) contemporary
understandings of applicable economic and sociologi-
cal norms, or as otherwise described, relevant public
policies. . . .
‘‘The Geisler factors serve a dual purpose: they
encourage the raising of state constitutional issues in
a manner to which the opposing party . . . can
respond; and they encourage a principled development
of our state constitutional jurisprudence. Although in
Geisler we compartmentalized the factors that should
be considered in order to stress that a systematic analy-
sis is required, we recognize that they may be inextrica-
bly interwoven. . . . [N]ot every Geisler factor is rele-
vant in all cases. . . . Moreover, a proper Geisler
analysis does not require us simply to tally and follow
the decisions favoring one party’s state constitutional
claim; a deeper review of those decisions’ underpin-
nings is required because we follow only persuasive
decisions.’’ (Internal quotation marks omitted.) Feehan
v. Marcone, 331 Conn. 436, 449, 204 A.3d 666, cert.
denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d 35(2019).
Relying on the same federal cases that she relied on
in support of her claim under the federal constitution,
the respondent contends that the first Geisler factor
weighs in her favor. The respondent does not explain
why, however, if we conclude that the federal cases on
which she relies do not support her claim under the
federal constitution—which we do—the same cases
should nonetheless support her claim under the state
constitution. We further note that, to the extent that the
respondent relies on the cases recognizing that parents
have a fundamental liberty interest in family integrity
under the federal constitution, it is well established that
‘‘[t]here are . . . limitations on . . . parental rights.
Some of these limitations arise out of an appreciation
of the state’s long recognized interests as parens patriae.
See Reno v. Flores, 507 U.S. 292, 303–304, 113 S. Ct.
1439, 123 L. Ed. 2d 1 (1993); Santosky v. Kramer, [supra,455 U.S. 766]; Parham v. J. R., 442 U.S. 584, 605, 99 S.
Ct. 2493, 61 L. Ed. 2d 101 (1979); Prince v. Massachu-
setts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645(1944); see also General Statutes § 10-204a (requiring
parents to immunize children prior to school enroll-
ment); General Statutes §§ 14-100a [and] 14-272a
(requiring child restraint in vehicles); General Statutes
§ 17a-81 (authorizing emergency medical treatment
[when] parent withholds consent); General Statutes
§§ 31-23 [and] 31-24 (restricting child labor from certain
occupations or workplaces); General Statutes § 53-21a
(prohibiting parents from leaving child unsupervised in
public accommodation or vehicle). Furthermore, it is
unquestionable that in the face of allegations that par-
ents are unfit, the state may intrude [on] a family’s
integrity.’’ Roth v. Weston, 259 Conn. 202, 224, 789 A.2d
431 (2002). These cases support the view that any intru-
sion on the respondent’s parental rights resulting from
her choice to invoke the fifth amendment does not rise
to the level of a federal constitutional violation. We
conclude, therefore, that this factor weighs in favor of
the petitioner.
With respect to the second factor—the text of the
state constitutional provisions—although the respon-
dent rightly points out that we can construe the text
of our state constitutional due process provisions as
providing broader protections than the due process pro-
vision of the fourteenth amendment; see, e.g., In Re
Taijha H.-B., 333 Conn. 297, 327 n.20, 216 A.3d 601(2019); she has not explained why, under the specific
circumstances of the present case, the text of either
article first, § 8, or article first, § 10, warrants a broader
reading. To the extent that she contends that the open
courts provision of article first, § 10, which has no ana-
logue in the federal constitution, is inherently broader
than the federal constitution, we are not persuaded by
her conclusory argument that requiring her to choose
between her fifth amendment privilege against self-
incrimination and her due process right to testify at the
termination proceeding denied her access to the courts
within the meaning of that provision.21 We conclude,
therefore, that this factor does not support the respon-
dent’s claim.
With respect to the third Geisler factor, the respon-
dent contends that a review of the intent of our constitu-
tional forebears reveals that they viewed the right to
family integrity and the right to personal liberty as indis-
tinguishable. In support of this contention, she points
out that Connecticut’s earliest extant compilation of
statutes, Ludlow’s Code of 1650, contained the follow-
ing language in its introduction: ‘‘ ‘[N]o mans life shall
bee taken away, no mans honor or good name shall bee
stained, no mans person shall be arrested, restrained,
banished, dismembered nor any way punished; no man
shall bee deprived of his wife or children, no mans
goods or estate shall bee taken away from him, nor any
wayes indamaged, vnder colour of Law or countenance
of Authority, vnless it bee by the vertue or equity of
some express Law of the Country warranting the same,
established by a Generall Courte, and sufficiently pub-
lished, or in case of the defect of a Law in any perticular
case, by the word of God.’ ’’ (Emphasis added.) W. Hor-
ton, The Connecticut State Constitution (2d Ed. 2012)
p. 76.
We have no quarrel with the respondent’s contention
that the fundamental right of parents to raise their chil-
dren has deep roots in Connecticut history and, like
the right to personal liberty, is entitled to heightened
due process protections under both the federal and
state constitutions. It does not necessarily follow from
these facts, however, that the state constitution pro-
vides broader protections to the right to family integrity
than the federal constitution. We note that the United
States Supreme Court recognized almost 100 years ago
that, for purposes of determining the scope of the due
process protections provided by the federal constitu-
tion, the right ‘‘to marry, establish a home and bring
up children’’ is one of the ‘‘privileges long recognized
at common law as essential to the orderly pursuit of
happiness by free men.’’ Meyer v. Nebraska, 262 U.S.
390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). The respon-
dent has not provided a detailed historical review of
the constitutional right to family integrity under either
the federal or the state constitution, and conducting
such a review is beyond the scope of this opinion. It is
reasonable to assume, however, that the federal consti-
tutional right to family integrity, like the right under
the state constitution, can be traced to, among other
sources, Connecticut’s Ludlow Code, and to earlier
English common-law sources that are shared by the
Ludlow Code. Thus, in the absence of any evidence to
the contrary, it is reasonable to conclude that the right
to family integrity under the federal constitution has
roots that are as deep as the right under the state consti-
tution.
Moreover, this court previously has recognized that
‘‘[t]he privilege against self-incrimination embodied in
article first, § 8 [of the Connecticut constitution] has
its genesis in the common law. Historically the privilege
became part of the common law because of the experi-
ence with the oath ex officio as used originally in the
ecclesiastical courts and later in the Court of the Star
Chamber. 8 [J.] Wigmore, Evidence (McNaughton Rev.
[1961]) § 2250. The seemingly innocuous oath which
bound a person under examination to make a true
answer to all questions that might be asked was used
to force him to destroy himself by his own testimony.
If his compelled testimony convicted him, he was pun-
ished. If he refused to take the oath, he was subjected
to torture.’’ (Emphasis added.) State v. Asherman, 193
Conn. 695, 711, 478 A.2d 227 (1984), cert. denied, 470
U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).
‘‘The purpose of incorporating the privilege in our state
constitution was to place this right as it was known at
common law beyond legislative abolition.’’ Id., 712. This
history supports the view that the purpose of the portion
of article first, § 8, providing that ‘‘[n]o person shall be
compelled to give evidence against himself’’ was to
prohibit the compulsion of self-incriminating punish-
ment by an immediate, severe, and automatic punish-
ment, not to prohibit the state from requiring an individ-
ual to make a choice between the right to remain silent
and the right to testify. Accordingly, we conclude that
the third Geisler factor does not support the conclusion
that the due process provisions of the state constitution
are more protective of a parent’s due process right to
testify at proceedings to terminate parental rights than
the due process provision of the fourteenth amendment.
With respect to the fourth Geisler factor—persuasive
Connecticut precedents—the respondent essentially
reiterates her contention under the second Geisler fac-
tor that our case law supports the notion that the due
process provisions of the state constitution can provide
broader protections than the due process clause of the
fourteenth amendment. Having concluded that the sec-
ond factor does not support the respondent’s claim, we
reach the same conclusion here.
With respect to the fifth Geisler factor—persuasive
precedents of other state courts—the respondent cites
the following cases in support of her claim: R.M. v.
Elmore County Dept. of Human Resources, 75 So. 3d
1195, 1205 (Ala. Civ. App. 2011) (juvenile court abused
its discretion when it denied respondent parents’
motions to stay termination proceedings pending con-
clusion of related criminal proceedings); In re A.W.,
231 Ill. 2d 92, 108, 896 N.E.2d 316 (2008) (under federal
constitution, ‘‘a juvenile court may not compel a parent
to admit to a crime that could be used against him or
her in a subsequent criminal proceeding by threatening
the loss of parental rights’’); In re A.D.L., 133 Nev. 561,
568, 402 P.3d 1280 (2017) (trial court violated respon-
dent mother’s federal due process rights when it termi-
nated her parental rights solely because she had refused
to admit intentionally abusing child); In re Amanda W.,
124 Ohio App. 3d 136, 141, 705 N.E.2d 724 (1997) (state
violated parents’ rights under federal constitution when
it terminated their parental rights for refusing to admit
that father sexually abused daughter); Dept. of Human
Services v. K.L.R., 235 Or. App. 1, 10, 230 P.3d 49 (2010)
(‘‘requiring an admission of abuse as a condition of
family reunification violates a parent’s [f]ifth [a]mend-
ment rights’’).
We conclude that none of these cases supports the
proposition that requiring a parent to choose between
testifying at a termination of parental rights proceeding
and invoking his or her right not to testify to avoid
self-incrimination is unconstitutional under either the
federal or the state constitution. The respondent’s reli-
ance on R.M. is misplaced because the court in that case
did not conclude that the juvenile court had violated
any provision of the Alabama constitution or the federal
constitution when it denied the respondents’ motion to
stay the termination proceedings but held only that the
ruling was an abuse of discretion. See R.M. v. Elmore
County Dept. of Human Resources, supra, 75 So. 3d
1205. Indeed, the Alabama Court of Civil Appeals
expressly recognized that the federal constitution ‘‘does
not require a stay of civil proceedings pending the out-
come of potential criminal proceedings . . . .’’ (Inter-
nal quotation marks omitted.) Id., 1201. In all of the
other cases on which the respondent relies, the courts
held that it violates the federal constitution to require
a parent to choose between admitting to having abused
a child or having his or her parental rights automati-
cally terminated for failure to make such an admission.
As we explained in part I A of this opinion, the trial
court required the respondent to make no such choice
in the present case but based its decision exclusively
on the evidence presented by the respondent and by
the petitioner. See In re D.L.W., 413 S.W.3d 2, 9–10 (Mo.
App. 2012) (finding no constitutional violation when
termination of father’s parental rights was not based
solely on his failure to admit to sexual abuse but was
based on clear and convincing evidence that there were
multiple grounds for termination). We conclude, there-
fore, that this Geisler factor does not support the
respondent’s claim.
Finally, with respect to the sixth Geisler factor—
contemporary understandings of applicable economic
and sociological norms and relevant public policies—
the respondent essentially reiterates her contention
under the third Geisler factor that the right to family
integrity has deep roots in this state. As we already
explained, we do not agree that it follows from that fact
that the protections afforded by the state constitution
in this context are broader than those afforded by the
federal constitution. Furthermore, it is against relevant
public policy to allow children to remain in foster care
for lengthy periods without achieving permanency. Per-
manency does not mean securing a stable foster place-
ment but, rather, finding a child a permanent and stable
home. ‘‘[No] child can grow emotionally while in limbo,
never really belonging to anyone except on a temporary
and ill-defined or partial basis.’’ (Internal quotation
marks omitted.) In re Davonta V., 285 Conn, 483, 495,
940 A.2d 733 (2008). To this end, General Statutes § 17a-
111a mandates that, in the absence of the exceptional
circumstances set forth in subsection (b) of that statute,
the petitioner ‘‘shall file a petition to terminate parental
right pursuant to section 17a-112 if (1) the child has
been in the custody of the [petitioner] for at least fifteen
consecutive months, or at least fifteen months during
the twenty-two months, immediately preceding the fil-
ing of such petition . . . .’’22 If the court approves a
permanency plan of termination of parental rights and
adoption, which first occurred in this case in August,
2018, General Statutes § 46b-129 (k) (6) requires the
petitioner to file a petition for termination of parental
rights ‘‘not later than sixty days after such approval if
such petition has not previously been filed . . . .’’ In
addition, General Statutes § 17a-111b (b) provides that
a court, upon motion by the petitioner, may determine,
by clear and convincing evidence, that the petitioner
need not make reasonable efforts to reunify a parent
with a child after removal if the parent has subjected
the child to certain aggravated circumstances, including
the infliction of sexual exploitation or severe physical
abuse on the child or the deliberate, nonaccidental kill-
ing of the child.23 If the court determines that reasonable
efforts are not required, it must, within thirty days,
approve a permanency plan for the child and, if the
plan is adoption, require that the commissioner file a
petition to terminate parental rights. Thus, as a matter
of public policy, the statutory scheme contemplates the
petitioner’s need to proceed quickly to achieve perma-
nency for children who have been removed from their
parents.24 Indeed, although a parent’s fundamental lib-
erty interest in the care, custody, and management of
his or her child has deep roots in this state’s history,
these statutory provisions demonstrate that, in more
recent times, there has been a growing public recogni-
tion of the important interests of children who have
been removed from their parents in achieving stability
and permanency as quickly as reasonably possible.25 A
rule that the court is constitutionally required to await
the outcome of any related criminal proceeding that
may have been initiated against the parent before
achieving permanency for the children would under-
mine this public policy.
Moreover, under such a rule, the termination of
parental rights proceeding could be delayed whenever
there was a possibility of related criminal charges. In
some cases, the applicable statute of limitations could
prolong the period of uncertainty for years. Similarly,
an appeal from a criminal conviction or a petition for
a writ of habeas corpus could mean years of delay.
Such a delay would not only leave the children in limbo,
in contravention of the statutory guidelines requiring
the prompt resolution of such proceedings in the inter-
ests of permanency, but it could also mean that wit-
nesses would become unavailable and memories would
fade, thereby impeding the ability of the parties to fully
and fairly present their case.
Because we conclude that none of the Geisler factors
supports the respondent’s claim that the trial court’s
denial of her motion for a continuance of the termina-
tion of parental rights proceedings pending the conclu-
sion of the criminal proceedings violated her due pro-
cess rights under the Connecticut constitution, we
reject this claim.
II
We next address the respondent’s claim that the trial
court abused its discretion when it denied her motion
for a continuance of the termination of parental rights
proceeding pending the conclusion of the criminal pro-
ceeding. We disagree.
‘‘[W]hen there are parallel civil and criminal proceed-
ings, the courts have discretion to stay discovery in a
civil proceeding or to stay the action in its entirety if
required by the interests of justice.’’ Tyler v. Shenkman-
Tyler, supra, 115 Conn. App. 528. ‘‘In determining
whether to impose a stay . . . the court must balance
the interests of the litigants, nonparties, the public and
the court itself. . . . The factors a court should con-
sider include: [1] the interests of the [nonmoving party]
in an expeditious resolution and the prejudice to the
[nonmoving party] in not proceeding; [2] the interests
of and burdens on the [moving party]; [3] the conve-
nience to the court in the management of its docket
and in the efficient use of judicial resources; [4] the
interests of other persons not parties to the civil litiga-
tion; and [5] the interests of the public in the pending
civil and criminal actions.’’ (Internal quotation marks
omitted.) Id., 529; see also State v. Coney, 266 Conn.
787, 802, 835 A.2d 977 (2003) (factors to be considered
in determining whether continuance should be granted
include ‘‘the timeliness of the request for continuance;
the likely length of the delay; the age and complexity
of the case; the granting of other continuances in the
past; the impact of delay on the litigants, witnesses,
opposing counsel and the court; the perceived legiti-
macy of the reasons proffered in support of the request;
[and] the [moving party’s] personal responsibility for
the timing of the request’’ (internal quotation marks
omitted)).
‘‘The determination of whether to grant a request for
a continuance is within the discretion of the trial court,
and will not be disturbed on appeal absent an abuse of
discretion. . . . A reviewing court is bound by the prin-
ciple that [e]very reasonable presumption in favor of
the proper exercise of the trial court’s discretion will
be made. . . . To prove an abuse of discretion, an
appellant must show that the trial court’s denial of
a request for a continuance was arbitrary.’’ (Internal
quotation marks omitted.) State v. Coney, supra, 266
Conn. 801.
With these principles in mind, we address the respon-
dent’s claim that the trial court abused its discretion
when it denied her fourth motion for a continuance.
The strongest consideration in the respondent’s favor
is that granting the continuance would have allowed
her to testify in her own defense at a proceeding involv-
ing her fundamental liberty interest in parenting her
children.
This consideration, however, must be weighed
against the countervailing facts that, at the time that the
respondent filed her fourth motion for a continuance
on December 30, 2020, (1) the trial court already had
granted three continuances and the trial had been
delayed for more than eighteen months, (2) Ivory and
Darrick, who were then, respectively, five and seven
years old, had been in the petitioner’s custody for more
than three years and in a preadoptive foster home for
more than two years, and (3) the criminal proceeding
in federal court had been postponed indefinitely as the
result of the COVID-19 pandemic. The trial court con-
cluded, after granting the respondent’s third motion for
a continuance, that, at their young age, the two children
‘‘desperately need[ed] permanency.’’ See, e.g., In re
Davonta V., supra, 285 Conn. 494 (‘‘[t]his court has
noted consistently the importance of permanency in
children’s lives’’ (internal quotation marks omitted));
see also id., 495 (‘‘[n]o child can grow emotionally while
in limbo, never really belonging to anyone except on
a temporary and ill-defined or partial basis’’ (internal
quotation marks omitted)). We therefore conclude that
it was not unreasonable for the trial court to conclude
that the interests of the children and the petitioner
in having the matter resolved as soon as reasonably
possible outweighed the respondent’s interest in post-
poning the matter so that she could testify, especially
when she was seeking a postponement for an indefinite
period. See Ex parte K.G., supra, 2021 WL 2878696, *7,
*9 (trial court did not abuse its discretion when it denied
mother’s motion to stay termination of parental rights
proceeding pending conclusion of criminal proceedings
when mother presented no evidence ‘‘regarding the
length of time the mother [was] advocating that a per-
manency determination for the children be post-
poned’’); Burkett v. Arkansas Dept. of Human Services,
supra, 507 S.W.3d 534 (trial court did not abuse its
discretion when it denied father’s motion to stay termi-
nation of parental rights proceeding pending conclusion
of related criminal proceedings because ‘‘a child’s need
for permanency and stability may override a parent’s
request for additional time to improve the parent’s cir-
cumstances’’); In re Quinn, 54 Mass. App. 117, 122,
763 N.E.2d 573 (2002) (trial court did not abuse its
discretion when it denied request to continue ‘‘care and
protection trial’’ pending resolution of related criminal
proceeding because paramount interests of children in
speedy resolution of case outweighed father’s interest
in testifying in his own defense).
We also find it significant that, by the time the respon-
dent filed her fourth motion for a continuance, the trial
court already had determined that the children had been
neglected and had committed them to the petitioner’s
custody, partly on the basis of undisputed evidence
that the respondent had admitted to Meriden police
detectives and others that she had distributed sexually
explicit photographs of Ivory to multiple persons. We
further note that the respondent did not make an offer
of proof indicating the nature of her testimony that she
wanted to present if the continuance were granted.26
We conclude that it was not unreasonable for the trial
court to consider the seriousness of the established
neglect allegations and the weight of the evidence sup-
porting those allegations when determining whether a
continuance should be granted to allow the respondent
to testify in her own defense. We emphasize that we
do not suggest that the respondent’s right to testify in
her own defense was diminished by these circum-
stances. We conclude, however, that, in the absence of
any offer of proof as to the substance of the testimony
that the respondent would present if her motion for a
continuance were granted or any claim that her testi-
mony could affect the outcome of the termination pro-
ceeding, the trial court was not required to grant the
motion. See In re Lukas K., 300 Conn. 463, 473, 14
A.3d 990 (2011) (trial court properly denied request for
continuance of termination of parental rights proceed-
ing when respondent father ‘‘gave no indication to the
trial court . . . by offer of proof or otherwise, as to
the specific nature of the additional evidence that he
would have presented or attempted to elicit from the
petitioner’s witnesses’’ if continuance were to be
granted). We conclude, therefore, that the trial court did
not abuse its discretion when it denied the respondent’s
fourth motion for a continuance of the termination of
parental rights proceeding pending the conclusion of
the criminal proceedings.
In support of her claim to the contrary, the respon-
dent contends that the children’s needs were entitled
to little or no weight because, at the time that she filed
the fourth motion for a continuance, they were thriving
in their foster home and they presumably would have
continued to do so during the period that the trial was
delayed. As we have explained, however, a sense of
permanency, in and of itself, is crucial for a child’s
welfare. See In re Davonta V., supra, 285 Conn. 495(‘‘[n]o child can grow emotionally while in limbo, never
really belonging to anyone except on a temporary and
ill-defined or partial basis’’ (internal quotation marks
omitted)). Indeed, as we indicated, the children them-
selves had expressed a desire for permanency so that
they would no longer have people ‘‘ask[ing] them ques-
tions all the time.’’ Delaying the trial indefinitely would
have meant keeping these very young children in a
state of limbo indefinitely. Accordingly, we reject the
respondent’s claim.
III
Finally, we address the respondent’s claim that we
should exercise our supervisory authority to require
our trial courts to grant a respondent’s motion for a
continuance of a termination of parental rights proceed-
ing whenever the respondent has invoked his or her
fifth amendment privilege against self-incrimination in
a criminal proceeding involving the same misconduct.
We disagree.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . The exercise of our supervisory powers
is an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while
not rising to the level of a constitutional 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. . . .
‘‘We recognize that this court’s supervisory authority
is not a form of free-floating justice, untethered to legal
principle. . . . Rather, the rule invoking our use of
supervisory power is one that, as a matter of policy, is
relevant to the perceived fairness of the judicial system
as a whole, most typically in that it lends itself to the
adoption of a procedural rule that will guide lower
courts in the administration of justice in all aspects of
the [adjudicatory] process. . . . Indeed, the integrity
of the judicial system serves as a unifying principle
behind the seemingly disparate use of [this court’s]
supervisory powers.’’ (Citations omitted; internal quota-
tion marks omitted.) In re Yasiel R., 317 Conn. 773,
789–90, 120 A.3d 1188 (2015).
We conclude that a rule requiring trial courts to grant
all requests for continuances by respondents in termina-
tion of parental rights proceedings when the respondent
has invoked his or her fifth amendment privilege against
self-incrimination in connection with a related criminal
proceeding is not required to ensure the fairness and
integrity of the judicial system. To the contrary, such
a rule would deprive trial courts of their ability to con-
sider the fairness of their rulings by eliminating their
discretion to consider ‘‘[1] the interests of the [nonmov-
ing party] in an expeditious resolution and the prejudice
to the [nonmoving party] in not proceeding; [2] the
interests of and burdens on the [moving party]; [3] the
convenience to the court in the management of its
docket and in the efficient use of judicial resources; [4]
the interests of other persons not parties to the civil
litigation; and [5] the interests of the public in the pend-
ing civil and criminal actions’’; (internal quotation
marks omitted) Tyler v. Shenkman-Tyler, supra, 115
Conn. App. 529; as well as ‘‘the timeliness of the request
for continuance; the likely length of the delay; the age
and complexity of the case; the granting of other contin-
uances in the past; the impact of delay on the litigants,
witnesses, opposing counsel and the court; the per-
ceived legitimacy of the reasons proffered in support
of the request; [and] the [moving party’s] personal
responsibility for the timing of the request . . . .’’
(Internal quotation marks omitted.) State v. Coney,
supra, 266 Conn. 802. In reaching this conclusion, we
emphasize that courts must consider a respondent’s
important interest in testifying in his or her own defense
in a matter involving a fundamental liberty interest
when ruling on a motion for a continuance pending
the resolution of a related criminal proceeding. As the
circumstances of the present case show, however, there
are other weighty interests that also are entitled to
consideration. Although there may be cases in which
fairness requires the granting of a respondent’s motion
for a continuance when a criminal proceeding is pend-
ing, particularly when it is near resolution, we decline
the respondent’s invitation to deprive trial courts of
their ability to consider and balance these important
interests when determining whether a continuance
should be granted to await the outcome of a pending
or impending criminal proceeding.27 Accordingly, we
reject this claim.
The judgments are affirmed.
In this opinion the other justices 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.
** March 31, 2022, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We hereinafter refer to Amber F. as the respondent.
2
The trial court also terminated the parental rights of Ivory’s father,
David W., and Darrick’s father, Darrick B. Neither father has participated
in this appeal.
3
The respondent appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
4
Among other things, the trial court ordered the respondent to keep
appointments with and to cooperate with the department, to participate in
counseling and to make progress toward treatment goals, including learning
to make better choices for herself and her children, to cooperate with a
specified service provider for parenting counseling, to cooperate with court-
ordered evaluations or testing, and to sign releases allowing the department
to communicate with service providers to check on her attendance, coopera-
tion, and progress toward identified goals.
5
The petitioner was required, pursuant to General Statutes § 46b-129 (k)
(1) (A), to submit a permanency plan for the children nine months after
their removal from the respondent’s custody.
6
Pursuant to General Statutes § 46b-129 (k) (6), the petitioner was required
to file a petition for termination of parental rights not later than sixty days
after the trial court approved the permanency plan of adoption.
7
Section 2251 (e) of title 18 of the 2018 edition of the United States
Code provides in relevant part: ‘‘Any individual who violates, or attempts
or conspires to violate, this section shall be fined under this title and impris-
oned not less than [fifteen] years nor more than [thirty] years . . . .’’
8
Section 2252A (b) (1) of title 18 of the 2018 edition of the United States
Code provides in relevant part: ‘‘Whoever violates, or attempts or conspires
to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined
under this title and imprisoned not less than [five] years and not more than
[twenty] years . . . .’’
9
Pursuant to General Statutes § 46b-129 (k) (1) (A), the petitioner must
file a motion for review of a permanency plan nine months after the initial
plan has been approved.
10
In the written statement, the respondent did not address her responsibil-
ity for the conduct that was the subject of the pending criminal charges.
11
General Statutes § 17a-112 (k) provides: ‘‘Except in the case where
termination of parental rights is based on consent, 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 available 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 from time to time; (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, any guardian of such child’s
person 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, provided the court may give weight to
incidental visitations, communications or contributions, and (B) the mainte-
nance of regular contact or communication with the guardian or other
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.’’
12
The fifth amendment privilege against self-incrimination is applicable
to the states through the due process clause of the fourteenth amendment
to the United States constitution. See, e.g., Malloy v. Hogan, 378 U.S. 1, 6,
84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).
13
Although an individual who has been severely penalized for exercising
the privilege against self-incrimination has not, in a literal sense, been com-
pelled to speak, the cases addressing this issue treat the imposition of a
severe penalty for exercising that privilege and being compelled to speak
as equivalent for purposes of analyzing the constitutionality of the state
action at issue.
14
‘‘The three factors to be considered are (1) the private interest that will
be affected by the state action, (2) the risk of an erroneous deprivation of
such interest, given the existing procedures, and the value of any additional
or alternate procedural safeguards, and (3) the government’s interest, includ-
ing the fiscal and administrative burdens attendant to increased or substitute
procedural requirements. . . . Due process analysis requires balancing the
government’s interest in existing procedures against the risk of erroneous
deprivation of a private interest inherent in those procedures.’’ (Citation
omitted; internal quotation marks omitted.) Foster v. Foster, supra, 84 Conn.
App. 319.
15
Practice Book (2001) § 34-1 (f) ‘‘was [adopted] in order to implement
[General Statutes] § 46b-137 (b) [now § 46b-137 (d)] . . . .’’ In re Samantha
C. supra, 268 Conn. 647. General Statutes (Rev. to 2003) § 46b-137 (b) pro-
vides: ‘‘Any confession, admission or statement, written or oral, made by
the parent or parents or guardian of the child or youth after the filing of a
petition alleging such child or youth to be neglected, uncared-for or depen-
dent, 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 a
right to refuse to make any statement and that any statements he makes
may be introduced in evidence against him.’’
16
Accordingly, we need not decide whether the trial court would have
violated the respondent’s constitutional rights if it had drawn an adverse
inference.
17
The respondent cites a number of state cases holding that, under the
federal constitution, a trial court cannot automatically terminate an individu-
al’s parental rights exclusively on the basis of the individual’s refusal to
testify at the termination of parental rights proceeding on fifth amendment
grounds. These cases, which we discuss more fully in part I B of this opinion,
are distinguishable because the trial court in the present case did not rely
on the respondent’s failure to testify to support its conclusion that the
respondent’s parental rights should be terminated.
18
Article first, § 8, of the Connecticut constitution provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel . . . . No person shall be compelled to give
evidence against himself, nor be deprived of life, liberty or property without
due process of law . . . .’’
19
Article first, § 10, of the Connecticut constitution provides: ‘‘All courts
shall be open, and every person, for an injury done to him in his person,
property or reputation, shall have remedy by due course of law, and right
and justice administered without sale, denial or delay.’’
20
The respondent concedes that she did not raise this claim in the trial
court and seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015). ‘‘Under Golding, it is well settled that a defendant may
prevail on an unpreserved claim when: ‘(1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation . . . exists and . . . deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt.’ . . . State v. Golding, [supra, 239–40]; see In re Yasiel R., [supra,
781] (modifying third prong of Golding).’’ State v. McClain, 324 Conn. 802,
809 n.5, 155 A.3d 209 (2017). We conclude that the conditions for reviewabil-
ity of the respondent’s claim under the state constitution are met.
21
‘‘Article first, § 10, [of the Connecticut constitution] has been viewed
as a limitation [on] the legislature’s ability to abolish [common-law] and
statutory rights that existed in 1818, when article first, § 10, was adopted,
and which were incorporated in that provision by virtue of being established
by law as rights the breach of which precipitates a recognized injury . . . .
Therefore, [when] a right existed at common law or by statute in 1818 and
became incorporated into the Connecticut constitution by the adoption of
article first, § 10, the legislature may restrict or abolish such incorporated
right only [when] it provides a reasonable alternative to the enforcement
of such right.’’ (Citations omitted; internal quotation marks omitted.) Ecker
v. West Hartford, 205 Conn. 219, 234, 530 A.2d 1056 (1987). Although we
do not rule out the possibility that the provision may have other functions,
we cannot conclude that it is implicated every time a litigant has a colorable
claim that he or she was deprived of a procedural due process right dur-
ing trial.
22
This statutory requirement implements a federal regulation that, in turn,
implements the federal Adoption and Safe Families Act of 1997, Pub. L. No.
105-89, 111 Stat. 2115. See 45 C.F.R. § 1356.21 (i) (1) (i) and (2) (ii) (2020)
(state agency must file petition to terminate the parental rights of parent
‘‘[w]hose child has been in foster care under the responsibility of the . . .
agency for [fifteen] of the most recent [twenty-two] months’’ in absence of
compelling reason for determining that filing petition would not be in best
interests of child).
23
Practice Book § 35a-3 permits the filing of coterminous neglect and
termination of parental rights petitions in cases in which the severe nature
of the neglect or abuse allegations warrant dispensing with reasonable
efforts at reunification.
24
See General Statutes § 45a-605, which provides: ‘‘(a) The provisions of
sections 45a-603 to 45a-622, inclusive [governing, among other things, the
appointment of a temporary guardian for the child when an application for
termination of parental rights has been made], shall be liberally construed
in the best interests of any minor child affected by them, provided the
requirements of such sections are otherwise satisfied.
‘‘(b) All proceedings held under said sections shall, in the best interests
of the minor child, be held without unreasonable delay.’’
25
See, e.g., 115 Am. Jur. Trials 465, 477, § 3 (2010) (‘‘the [federal Adoption
Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500]
focused more on the preservation and reuniting of the family unit, with more
deference to parental rights, whereas the [superseding federal Adoption and
Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115] is more con-
cerned with the rights of children to be healthy and to have a safe, perma-
nent home’’).
26
The respondent contends that, although ‘‘[s]he may not have contested
the allegations [at the temporary custody hearing or during the neglect
adjudication] . . . she certainly did not admit them.’’ She further contends
that she ‘‘objected to every permanency plan . . . and consistently reserved
her defenses for trial—reservations that the petitioner failed to object to
even once.’’ (Emphasis omitted.) The fact remains, however, that, to this
day, the respondent has not explained how the testimony that she would
have given if the trial court had granted her motion for a continuance would
have affected the outcome of the termination proceeding. On appeal, the
respondent indicates that she was precluded from testifying regarding the
timing of her engagement with therapy on her own initiative, but she makes
no claim that this testimony could have turned the tide in her favor; nor
does she claim that she was the exclusive source of this information. Indeed,
in response to the petitioner’s claim that any constitutional error was harm-
less, she claims that the trial court was required to grant the continuance
regardless of whether her testimony would have affected the result because
denying her the opportunity to testify in her own defense was structural
error. See State v. Brown, 279 Conn. 493, 505, 903 A.2d 169 (2006) (structural
error exists when ‘‘the error renders a trial fundamentally unfair and is not
susceptible to a harmless error analysis . . . because of [t]he inability to
assess the effect of [the] impropriety on the . . . trial’’ (citations omitted;
internal quotation marks omitted)). The respondent cites no authority, how-
ever, for the proposition that a trial court’s exclusion of evidence in any
form or for any reason can constitute structural error. Cf. Ray v. Common-
wealth, 55 Va. App. 647, 652, 688 S.E.2d 879 (2010) (‘‘the exclusion of a
[witness’] testimony could never defy the ordinary harmless error analysis’’);
id. (‘‘Proffering the expected testimony of an excluded witness requires only
that the litigant disclose what he in good faith believes the witness would
likely say. No [litigant] could reasonably expect a trial judge to make a
decision to admit or exclude challenged testimony without receiving such
a proffer. Nor can a [litigant] expect an appellate court to vacate a criminal
conviction and order a new trial without knowing whether the excluded
testimony was admissible, relevant, or in the least bit probative. A trial court’s
exclusion of a witness, even if erroneous, does not constitute structural
error and thus does not suspend the longstanding requirement of a proffer.’’).
It may well be that there are circumstances under which a respondent
in a termination of parental rights proceeding who is seeking a continuance
pending the conclusion of a related criminal proceeding need not make a
proffer of the specific testimony that he or she would give if the continuance
were granted. As we discuss in this opinion, however, there were, in the
present case, important interests weighing against the respondent’s interest
in postponing the termination proceeding, and the burden was on her to
establish that a continuance was warranted. Under these circumstances,
we conclude that, if the respondent believed that her testimony was so
significant that it outweighed these competing interests and could affect
the outcome of the termination proceeding, it was incumbent on her to
explain why.
27
As we explained in part II of this opinion, the factors that weighed in
favor of denying the respondent’s motion for a continuance in the present
case included (1) the fact that the respondent had previously filed three
motions for a continuance and the termination of parental rights trial already
had been delayed for eighteen months, (2) the young age of the children,
(3) the needs of the children, who had been in the petitioner’s custody for
more than three years and in a preadoptive foster home for more than two
years, for permanency, (4) the fact that the respondent sought an indefinite
postponement, (5) the seriousness of the allegations against the respondent
and the weight of the evidence supporting them, and (6) the fact that the
respondent did not indicate the nature of the testimony she would give if
the motion for a continuance were granted. In the absence of any of these
factors, our conclusion might be different.