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MEMORANDUM Subject: May the court draw adverse inferences from a parent’s invocation of the Fifth Amendment privilege against self-incrimination in Child Protection proceedings? Questions Presented 1. May the court draw adverse inferences from a parent’s failure to testify in a Neglect or Termination of Parental Rights proceeding? 2. May the court draw adverse inferences from a parent’s refusal to respond to discovery requests in a Neglect or Termination of Parental Rights proceeding? Discussion 1. May the court draw adverse inferences from a parent’s failure to testify in a Neglect or Termination of Parental Rights proceeding? Although literally speaking the Fifth Amendment privilege against self-incrimination applies only to criminal proceedings, the privilege has been construed to extend to witnesses in civil proceedings where the answer to interrogation may subject the witness to criminal 1

Legal Memorandum on the 5th Amendment

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Page 1: Legal Memorandum on the 5th Amendment

MEMORANDUM Subject: May the court draw adverse inferences from a parent’s invocation of the

Fifth Amendment privilege against self-incrimination in Child Protection proceedings?

Questions Presented

1. May the court draw adverse inferences from a parent’s failure to testify in a

Neglect or Termination of Parental Rights proceeding?

2. May the court draw adverse inferences from a parent’s refusal to respond to

discovery requests in a Neglect or Termination of Parental Rights proceeding?

Discussion

1. May the court draw adverse inferences from a parent’s failure to testify in a Neglect or Termination of Parental Rights proceeding?

Although literally speaking the Fifth Amendment privilege against self-

incrimination applies only to criminal proceedings, the privilege has been construed to

extend to witnesses in civil proceedings where the answer to interrogation may subject

the witness to criminal prosecution. See Whitaker v. Prince George's County, 514 A.2d 4

(Md. 1986) as cited in Robinson v. Robinson, 615 A.2d 1190 (Md. 1992). Thus, in a civil

case the Fifth Amendment protects a witness from being required to make disclosure that

could incriminate him in a later criminal prosecution. See Whitaker v. Prince George's

County, 514 A.2d 4 (Md. 1986) as cited in Robinson, 615 A.2d at 1193. Case law has

repeatedly emphasized that a [Child Protection] proceeding is civil in nature. See Matter

of Commissioner of Social Services of City of New York [Denise R.], 219 AD2d 715 [2d

Dept 1995]; Matter of Randy A., 248 AD2d 838 [3d Dept 1998], both suggesting that a

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Child Neglect proceeding under New York Family Court Act article 10 is civil in nature,

as cited in Matter of David E., 176 Misc. 2d 363, 672 N.Y.S.2d 659 (1998). Thus, the

Fifth Amendment privilege against self-incrimination applies to witnesses in Child

Protection proceedings.

The Fifth Amendment privilege is not automatically implicated every time the

choice is made not to testify. In re J.W., 2003 D.C. App. LEXIS 697, 837 A.2d 40

(2003). Appellate review arises not from the existence of the privilege, but from its

invocation. Id. at 20, 837 A.2d at 48. Recognizing that in a Neglect proceeding, a parent

is not a criminal defendant, but a potential witness, the District of Columbia Court of

Appeals has said that the Fifth Amendment privilege enjoyed by a witness is narrower

than that of a defendant. See Littlejohn v. United States, 705 A.2d 1077 (D.C. 1997)

(quoting Harris v. United States, 614 A.2d 1277 (D.C. 1992)) as cited in J.W. at 20, 837

A.2d at 48. Unlike the criminal defendant, a witness may not refuse to take the witness

stand, but rather, must invoke the privilege as to those specific questions to which his

answers would incriminate him. See Littlejohn v. United States, 705 A.2d 1077 (D.C.

1997) (quoting Wilson v. United States, 558 A.2d 1135 (D.C. 1989)) as cited in J.W. at

20, 837 A.2d at 48. The court must then resolve the Fifth Amendment claim as to the

particular question.

In J.W., the father claimed that the Neglect proceeding violated his right to due

process of law. He argued that because he chose to exercise his Fifth Amendment

privilege by not testifying in the Neglect proceeding so as to prevent the government

from using his testimony in the pending criminal appeal, he was unable to “tell his side of

the story” at the Neglect hearing, and therefore was effectively “punished for exercising

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his Fifth Amendment right.” The court disagreed, stating as follows: “The Fifth

Amendment privilege is not self-executing. Rather, the privilege must be [invoked] in a

manner that fairly brings it to the attention of the trial court, and the court must then

resolve it.” See Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358

(1980) as cited in J.W. at 20, 837 A.2d at 48. The court held that the father was never

punished for exercising his Fifth Amendment privilege as there was no evidence that he

invoked the privilege: “By virtue of [the father’s] request for a stipulated trial, no

incriminating question was ever posed…that would have afforded [the father] even the

opportunity to invoke the privilege’s protection.” J.W., 2003 D.C. App. LEXIS 697 at

20.

The court further held that even if the record could be read to support the father’s

invocation of the Fifth Amendment privilege, it was never tested in the trial court. See

Littlejohn, 705 A.2d at 1083 (stating that when a witness invokes the Fifth Amendment

privilege, the court should…rule on the claim of privilege one question at a time)

(quoting Harris, 614 A.2d at 1282) as cited in J.W. at 20, 837 A.2d at 48. Concluding

that such determinations in the trial court are necessary predicates to effective appellate

review of a witness's Fifth Amendment claim, the court found that the assigned error was

not properly preserved. For effective appellate review to occur, then, the parent must not

only invoke the privilege as to the specific question to which his answer would

incriminate him, but the trial court must resolve the Fifth Amendment claim as to the

particular question.

Case law suggests that an adverse inference may be drawn from a witness’s

failure to testify in a civil proceeding. More specifically, an adverse inference may be

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drawn from a parent’s failure to testify in a Child Protection proceeding. As to civil

proceedings generally, some cases suggest that the witness’s failure to testify should only

be used as a factor, to be weighed with all other relevant evidence, in determining

liability. Other cases seem to suggest that the fact-finder is limited to the adverse

inference that can reasonably be drawn from the witness’s failure to testify. As to Child

Protection proceedings specifically, case law suggests that the trial court must give the

parent prior notice of its intent to draw an adverse inference from the parent’s failure to

testify.

Again, an adverse inference may be drawn from a witness’s failure to testify in a

civil proceeding. The United States Supreme Court’s conclusion in Baxter v.

Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) is consistent with the

prevailing rule that the Fifth Amendment does not forbid adverse inferences against

parties to civil actions when they refuse to testify in response to probative evidence

offered against them: the Fifth Amendment “does not preclude the inference where the

privilege is claimed by a party to a civil cause.” See 8 J. Wigmore, Evidence 439

(McNaughton rev. 1961) as cited in Baxter at 318. In Baxter, a prison inmate was

informed that he had a right to remain silent during his disciplinary hearing but that if he

did so his silence could be held against him. On the basis of the hearing, at which he

remained silent, the inmate was placed in “punitive segregation” for 30 days. The inmate

filed an action for damages and injunctive relief, claiming that the disciplinary hearing

violated his right to due process of law.

The court of appeals concluded that the Fifth Amendment forbids drawing

adverse inferences against an inmate from his failure to testify. In reversing the court of

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appeals, the Court held that prison officials could draw reasonable inferences from an

inmate’s silence given the civil nature of the proceedings. The Court reasoned that since

prison disciplinary hearings were not criminal proceedings, prisoners had fewer rights,

and the needs of the prisons had to be balanced against any of the inmates’ rights: “In

criminal cases, where the stakes are higher and the State's sole interest is to convict, [the

judge and prosecutor are prohibited] from suggesting to the jury that it may treat the

defendant's silence as substantive evidence of guilt. Disciplinary proceedings in state

prisons, however, involve the correctional process and important state interests other than

conviction for crime.” Baxter, 425 U.S. at 318.

In ruling that an adverse inference was allowed in civil cases, the Court clarified

the extent to which an inference could be drawn by stating that “a prison inmate…

electing to remain silent during his disciplinary hearing…is not in consequence of his

silence automatically found guilty of the infraction with which he has been charged.”

Baxter, 425 U.S. at 317. The court continued, “[D]isciplinary decisions ‘must be based

on substantial evidence manifested in the record of the disciplinary proceeding.’” See

Morris v. Travisono, 310 F. Supp. 857 (RI 1970) as cited in Baxter, 425 U.S. at 317.

Thus, the Court held that while an adverse inference was allowed, the fact that the

witness failed to testify was only to be used as a factor, to be weighed with all other

relevant evidence, in determining liability.

The Court of Appeals of Maryland in Robinson agreed that the court may

properly draw an adverse inference against a witness for his or her failure to testify in a

civil proceeding. Like the court in Baxter, however, the court in Robinson placed a

limitation, by limiting the trier of fact to the adverse inference that could reasonably be

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drawn from the witness’s failure to testify. In Robinson, the husband’s attorney cross-

examined the wife about an extramarital relationship during the couple’s child custody

proceedings. The wife refused to answer the questions, exercising her Fifth Amendment

privilege against self-incrimination. The trial court awarded custody to the wife, and the

husband appealed. The husband claimed that the negative inference that could be drawn

from the wife’s refusal to answer questions regarding her adultery established not only

her commission of adultery, but also her unfitness for custody. See Robinson v.

Robinson, 615 A.2d 1190 (Md. 1992) as cited in Long v. Long, 785 A.2d 818 (Md. App.

2001). The court disagreed, holding that the only proper inference produced by the

wife’s silence was that she had committed adultery.

The court reasoned that while the fact finder may draw an adverse inference from

an adverse party’s refusal to answer a question posed during that party's testimony, the

adverse party's refusal, taken alone, does not relieve a party of his or her burden of proof

on the issue that was the subject of the question. See Whitaker v. Prince George's

County, 514 A.2d 4 (Md. 1986) as cited in Robinson, 615 A.2d at 1194. The court went

on to say that “[while] the fact of adultery may be a relevant consideration in child

custody awards, no presumption of unfitness [for custody] arises from it; rather, it should

be weighed, along with all other…factors, only insofar as it affects the child’s welfare.”

Robinson, 615 A.2d at 1194. Thus, the court held that although the trier of fact may draw

an adverse inference, the trier of fact is limited by the adverse inference that can

reasonably be drawn from the witness’s failure to testify.

The Court of Special Appeals of Maryland in Long similarly agreed that the Fifth

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Amendment does not preclude adverse inferences where the privilege is claimed by a

party to a civil action. Like the court in Robinson, however, the court in Long limited the

fact-finder to the adverse inference that could reasonably be drawn from the witness’s

failure to testify. In Long, the husband, during the couple’s divorce proceedings, refused

to answer a special master’s questions about tax return filings on grounds of self-

incrimination. The trial court concluded that the husband had voluntarily impoverished

himself and/or failed to disclose the full amount of his income. On appeal, the husband

argued that the trial court could permissibly infer from the invocation of the Fifth

Amendment that he had not filed his tax returns, but that the court could draw no other

inference. The court agreed, and remanded for the trial court to clarify exactly what

evidence it relied on in reaching its conclusion. The court held that although the trial

court was entitled to draw an adverse inference against the husband when he invoked the

Fifth Amendment in response to questions about the status of his tax returns, the trial

court could not “penalize the exercise of the privilege.” See Baxter v. Palmigiano, 425

U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) as cited in Long at 822. The court

continued, “A court may not find voluntary impoverishment based solely on an…exercise

of the Fifth Amendment privilege without supporting evidence. Similarly, a court may

not find…that an individual…sought to ‘keep the full amount of his…income from being

disclosed’ without supporting evidence.” Long, 785 A.2d at 822. Thus, although it

found that the fact-finder may draw an adverse inference against a witness for his or her

failure to testify in a civil proceeding, the court limited the fact-finder to the adverse

inference that could reasonably be drawn from the witness’s failure to testify.

Additionally, the court found that a party’s privileged silence alone is insufficient to

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permit the fact-finder in a civil case to determine liability. See Kramer v. Levitt, 558

A.2d 760 (Md. App. 1989) as cited in Long at 822.

New York law, too, allows for appropriate adverse inferences to be drawn against

a witness because of his or her failure to testify in a civil proceeding. Matter of the

Commissioner of Social Services v. Philip De G., 59 N.Y.2d 137, 450 N.E.2d 681, 463

N.Y.S.2d 761 (1983). In Philip De G., the family court adjudged respondent to be the

father of a child born out of wedlock, and directed him to pay weekly support. The

appellate division reversed, finding the evidence of paternity to be insufficient. In

reversing the appellate division, the court held that the family court could consider, in

assessing the strength of the mother’s evidence, that respondent did not testify, and draw

appropriate inferences from his failure to do so. The court stated, “Filiation proceedings

are civil proceedings, and…in civil proceedings an [adverse] inference may be drawn

against the witness because of his failure to testify.” Philip De G., 450 N.E.2d at 682.

The court went on to say, however, that “the failure of [the witness] to testify does not

permit the trier of fact to speculate about what his testimony might have been nor does it

require an adverse inference. It does, however, allow the trier of fact to draw the

strongest inference against him that the opposing evidence in the record permits.” Philip

De G., 450 N.E.2d at 682. Thus, the court held that although the fact-finder does not

have to draw an adverse inference against the witness, the fact-finder may choose to do

so.

As stated earlier, an adverse inference may be drawn from a parent’s failure to

testify in a Child Protection proceeding. Under Connecticut law, however, the trial court

is required to give the parents prior notice of its intent to draw such an inference. In re

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Samantha C., 847 A.2d 883 (Conn. 2004). In Samantha C., the parents, both of whom

were present at the Termination of Parental Rights proceeding, elected not to testify. The

trial court granted the Commissioner’s petition. In doing so, it expressly drew an adverse

inference against the parents for their failure to testify at the Termination proceeding:

“The court infers from the [parents'] silence that they are continuing their volatile

relationship and are unable to care for Samantha's needs.” Samantha C., 847 A.2d 883.

On appeal, the parents claimed that because the Fifth Amendment forbids an

adverse inference from being drawn against a criminal defendant for electing not to

testify at trial, Connecticut law similarly forbade an adverse inference from being drawn

against them in the Termination proceeding. Id. at 897. The Commissioner argued that

the correct interpretation of Connecticut law was that although a parent had a right to

refuse to testify in a Termination proceeding, the Commissioner may, as in any other civil

proceeding, place a cost on a parent's assertion of that right, namely, allowing the trier of

fact to draw an adverse inference. Id. at 897.

The court agreed with the Commissioner, holding that “the trier of fact ‘is entitled

to draw all fair and reasonable inferences from the facts and circumstances [that] it finds

established by the evidence,’ which consist both of what was said, and what naturally

would have been.” See State v. McDonough, 29 A.2d 582 (Conn. 1942) as cited in

Samantha C., 847 A.2d at 898. In holding this, however, the court made it clear that “an

adverse inference…does not support proof of any particular fact; rather, it may be used

only to weigh facts already in evidence.” See State v. McDonough, 29 A.2d 582 (Conn.

1942) as cited in Samantha C., 847 A.2d at 899.

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The court further held that should a trial court be inclined to draw an adverse

inference against a parent for his or her failure to testify in a Termination proceeding, it is

incumbent upon the court to advise the parent accordingly. Id. at 915. The court relied

on language in Conn. Gen. Prac. Book, 2001, § 34-1(a), which provides: “The judicial

authority shall advise and explain to the parents…their right to silence…prior to

commencement of any proceeding. In this context, ‘advise’ means ‘to…warn,’ as in to

‘advise of the consequences,’ and ‘explain’ means ‘to make…understandable,’ as in to

make ‘intelligible what is not immediately obvious or entirely known.’” Samantha C.,

847 A.2d at 915. Thus, the court interpreted § 34-1(a) to suggest that it is incumbent

upon the trial court, not only to state that parents have a right to silence, but also to

explain, to some extent, the parameters of that right. Id. at 915. As the trial court had

failed to notify the parents of its intent to draw an adverse inference, the court remanded

for a new Termination proceeding.  

2. May the court draw adverse inferences from a parent’s refusal to respond to discovery requests in a Neglect or Termination of Parental Rights proceeding?

As previously stated, the Fifth Amendment privilege against self-incrimination

may be properly asserted by parties or witnesses in civil proceedings. See McCarthy v.

Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924) as cited in Kramer at 763. The

privilege protects persons “against being forced to make incriminating disclosures at any

stage of the proceeding if they could not be compelled to make such disclosures as a

witness at trial.” See National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th

Cir.1983) as cited in Kramer, 558 A.2d at 763. The privilege therefore applies not only

at trial, but at the discovery stage of civil proceedings as well.  See Lefkowitz v. Turley,

414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); United States v. Kordel, 397 U.S. 1,

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90 S.Ct. 763, 25 L.Ed.2d 1 (1970) as cited in Kramer at 763. As stated, a Child

Protection proceeding is civil in nature. See Matter of Commissioner of Social Services

of City of New York [Denise R.], 219 AD2d 715 [2d Dept 1995]; Matter of Randy A., 248

AD2d 838 [3d Dept 1998] as cited in Matter of David E., 176 Misc. 2d 363. Thus, the

privilege applies to witnesses at the discovery stage of any Child Protection proceeding.

Case law suggests that an adverse inference may be drawn from a witness’s

refusal to respond to discovery requests in a civil proceeding. While I have not found

any case law to specifically suggest that an adverse inference may be drawn from a

parent’s refusal to respond to discovery requests in a Child Protection proceeding, case

law in the child protection area suggests on what grounds a court may compel a parent to

comply with discovery requests. It is my assertion that should the court have a proper

basis for not compelling a parent to comply with discovery requests, i.e. a valid Fifth

Amendment invocation, other case law can be used to imply that an adverse inference

may be drawn from the parent’s refusal to respond to the discovery requests (since a

Child Protection proceeding is a civil proceeding, and a parent in a Child Protection

proceeding is a potential witness).

Again, an adverse inference may be drawn from a witness’s refusal to respond to

discovery requests in a civil proceeding. For instance, the court in Kramer ruled that an

adverse inference could be drawn from a witness’s refusal to respond to a request for

admissions. In Kramer, the investor moved for judgment as to the liability of the

individuals, partnership, and corporation in his action against them for breach of contract

and conversion. The trial court granted the motion, ruling that since the individuals,

partnership, and corporation did not admit or deny the requests for admissions presented

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by the investor, those statements were deemed admitted: “The assertion of the privilege

against self-incrimination is available….But it does not protect [Kramer] from the rules

of civil procedure which provide that where an admission is requested and it’s neither

admitted nor denied it shall be taken as admitted.” Kramer, 558 A.2d at 763. In

remanding for a new trial as to damages, the court held that it was not permissible for a

trial court to deem admitted those requests for admissions neither admitted nor denied by

a party; however, the jury could draw an adverse inference from the party’s assertion of

his Fifth Amendment privilege in response to the discovery requests.

The court reasoned that although at the time Kramer was served with the requests

for admissions, he was not faced with a criminal prosecution, he could reasonably fear

that the information gained from his admissions might furnish a basis for charges. The

court further reasoned: “[The rules of civil procedure] clearly state that in responding to

a request for admissions, a party must specify an objection, admit or deny the matter.

[Kramer] did in fact comply with this directive. Specifically, [Kramer] objected to the

requests for admissions and asserted his Fifth Amendment privilege as the reason for his

objection.” Kramer, 558 A.2d at 765.

The court concluded that it would have been constitutionally permissible under

Baxter for the trial judge to allow the requests for admissions to be read to the jury. The

court then should have instructed the jury that Kramer objected to answering these

requests relying on his constitutional privilege against self-incrimination, and that they

may, but need not, draw an adverse inference from Kramer’s assertion of his privilege

that his answers to the requests would have been adverse to his interests. See Cokely v.

Cokely, 469 So.2d 635 (Ala. Civ. App. 1985); Chaffin, Inc. v. Wallain, 689 P.2d 684

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(Colo. App.1984); Asplin v. Mueller, 687 P.2d 1329 (Colo. App.1984) as cited in Kramer

at 766. Thus, the court concluded that although the jury does not have to draw an adverse

inference from the party’s invocation of the Fifth Amendment privilege, it may choose to

do so.

As stated earlier, a court may compel a parent to comply with discovery requests

in a Child Protection proceeding. Under New York law, the court, in deciding on a

motion for a protective order by the parents, must weigh the party’s need for the

discovery to assist in the preparation of the case and any potential harm to the child from

the discovery. Matter of David E., 176 Misc. 2d 363. In Matter of David E., the county

filed a demand for interrogatories and a request for admissions in the Child Neglect

proceeding. The parents filed for a protective order as to both. New York Family Court

Act article 10 provides that unless otherwise proscribed by article 10, the provisions of

New York Civil Practice Law and Rules article 31 apply to proceedings under article 10.

Matter of David E., 176 Misc. 2d 363. Thus, New York Civil Practice Law and Rules

apply to Child Neglect proceedings. Relying on New York Civil Practice Law and Rules

article 31, which provides that “there shall be full disclosure of all matter material and

necessary in the prosecution or defense of an action…by…a party,” Matter of David E.,

176 Misc. 2d at 365, the court denied a protective order as to the demand for

interrogatories, holding that the information sought in the interrogatories was not

unnecessary, improper, unreasonable, or prejudicial to the parents.

As for the request for admissions, the court granted a protective order as to certain

statements, concluding that admissions to these statements would amount to admissions

of material issues or ultimate or conclusory facts to be proven at trial, and thus the

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statements were not proper for a request for admissions. Id. at 365. The court reasoned

that the purpose of a notice to admit is to “eliminate from the issues in litigation matters

which will not really be in dispute at the trial.” See Falkowitz v. Kings Highway Hosp.,

43 AD2d 696 [2d Dept 1973] as cited in Matter of David E., 176 Misc. 2d 363.

However, the court continued, a notice to admit cannot be used “to seek admissions of

material issues or ultimate or conclusory facts.” See Villa v. New York City Hous. Auth.,

107 AD2d 619 [1st Dept 1985] as cited in Matter of David E., 176 Misc. 2d 363. Thus,

under certain circumstances, a court may compel a parent to comply with discovery

requests in a Child Protection proceeding.

The court in Matter of Tyler S., 192 Misc. 2d 728, 748 N.Y.S.2d 215 (2002),

similarly ruled that a parent in a Child Protection proceeding may be compelled to

comply with discovery requests. As stated above, New York Family Court Act article 10

applies New York Civil Practice Law and Rules to New York Family Court Act article

10 proceedings unless otherwise proscribed by New York Family Court Act article 10.

Id. at 731. Under New York Civil Practice Law and Rules, a party to a civil action whose

mental condition is sufficiently in controversy may be compelled to submit to a mental

health examination upon motion of a party opponent. See Matter of R./G. Children, 165

Misc 2d 518 [Fam Ct, Kings County 1994] as cited in Matter of Tyler S. at 731. Thus, a

party to a Neglect proceeding may be compelled to submit to a mental health

examination, unless otherwise proscribed by New York Family Court Act article 10. In

Matter of Tyler S., the Administration for Children’s Services sought to have the mother

evaluated to determine whether she in fact suffered from an untreated mental illness that

impaired her ability to care for her child. The court ordered the mother to submit to a

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mental health examination, holding that New York Family Court Act §1038-a, the

provision of article 10 at issue, did not preclude the court from ordering the mother be

examined by a psychiatrist for the purpose of evaluating the mother’s mental condition.

Id. at 737.

New York Family Court Act article 10 gives the Family Court the authority to

order discovery in New York Family Court article 10 proceedings to be coextensive with

that possessed by courts in any other proceedings governed by New York Civil Practice

Law and Rules, except where specifically limited by New York Family Court Act article

10. Id. at 735. The court reasoned that although New York Family Court Act §1038-a

proscribes discovery of nontestimonial evidence in New York Family Court Act article

10 proceedings—that is, physical evidence compelled from the person—the statute is

silent as to testimonial evidence. Id. at 735. The court gave a possible explanation for

the proscription of nontestimonial evidence in New York Family Court article 10

proceedings:

New York Family Court Act § 1038-a recognizes that when the government seeks to discover evidence by means that intrude upon a person's bodily integrity, the government action implicates the Fourth Amendment prohibition against unreasonable searches and seizures, and should be justified by probable cause that the evidence is reasonably related to establishing the allegations in the petition. The legislature imposes this higher burden on parties in a New York Family Court Act article 10 proceeding, only as to the discovery of "nontestimonial" evidence obtained from a [parent’s] physical body. Matter of Tyler S., 192 Misc. 2d at 735.

Concluding that there was no indication in the language of the statute of any

legislative intent to circumscribe discovery of testimonial evidence from a parent in a

New York Family Court Act article 10 proceeding, the court held that testimonial

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evidence, i.e. evidence obtained from a witness’s submission to a mental health

examination, may be compelled in a New York Family Court Act article 10 proceeding to

the same extent as in any other civil proceeding, unless the statute may be read to imply a

silent proscription. Id. at 735. The court did not indicate one way or another whether the

statute should be read to imply such a proscription.

Conclusion

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

in a Child Protection proceeding. Under In re J.W., a parent must invoke the privilege as

to the specific question to which her answer would incriminate her, and the court must

then resolve the Fifth Amendment claim as to that specific question. Under Baxter, and

other case law, the Fifth Amendment does not forbid adverse inferences against parties to

civil actions when they refuse to testify in response to probative evidence offered against

them. Moreover, an adverse inference may be drawn from a parent’s failure to testify in

a Child Protection proceeding. Under In re Samantha C., however, the trial court must

give the parent prior notice of its intent to draw an adverse inference from the parent’s

failure to testify.

2. The Fifth Amendment privilege against self-incrimination is available to

witnesses not only at trial, but at the discovery stage of civil proceedings as well. Under

Kramer, an adverse inference may be drawn from a witness’s refusal to respond to

discovery requests in a civil proceeding. Should the court have a proper basis for not

compelling a parent to comply with discovery requests in a Child Protection proceeding,

i.e. a valid Fifth Amendment invocation, this, and other case law, can be used to imply

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that an adverse inference may be drawn from the parent’s refusal to respond to the

discovery requests.

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