Understanding Adverse Inference in a DCF Investigation

Negative inference means that if the parent chooses to exercise their right to remain silent and not testify, the court is free to infer that parents are “hiding” something. Essentially, the court can hold a parent’s silence at trial against him or her. (This is true for any stage of the proceedings, OTC, neglect or TPR.)

If the court grants the State’s request, the parent will have to testify in their defense – and potentially harm their criminal case – or risk negative inference. For example, where there is question about domestic violence, only the parents can provide the testimony needed to directly refute evidence of that domestic violence. However, in some cases there may still be a pending criminal charge as a result of domestic violence charges. If the parent chooses to testify at the termination proceeding, they may be cross-examined about the circumstances of the domestic violence – which is not necessarily an ideal situation with criminal charges pending. If the parent chooses not to testify, the court could infer that the parent would testify about facts that would support the State’s theory.

Although this seems to conflict with the constitutionally protected right against self-incrimination, there are a few reasons why negative inference actually does not violate the Fifth Amendment:

• Child protection proceedings are not criminal matters – they are recognized as civil in nature.
• All rights secured to parents in child protection matters are essentially statutorily created rights. The reason this concept matters is that at times only the parent can provide the required testimony to address certain aspects of a child protection proceeding.

If a parent is facing criminal charges, the choice to testify at the child protection proceeding is an extremely important one and should be made only with the assistance of competent counsel. Contact The Law Offices of John J. Ghidini today to discuss your case today »