Opinion
Nos. FA04-CP08-007835-A, FA04-CP08-007836-A
March 19, 2009
Memorandum of Decision AMC's/GAL's Motion to Permit Child Testimony
On February 19, 2009, the Attorney for the Minor Children and GAL filed a Motion for Permission to allow her minor clients, Connor E. and Caitlin E., to testify at a contested hearing in which DCF is seeking to reopen judgment and modify disposition. See: Connecticut Rules of Practice § 32a-4(b). The outcome of this hearing may directly affect the placement of these children. The father of Connor and Caitlin filed a written objection to this motion.
This hearing commenced on February 25, 2009. The parties argued their positions on these motions, and the court granted the father's request to provide additional support for his position through a written memorandum. The "memorandum" submitted by the respondent father, Mr. E., consists of a letter written by him, unattested, expressing his concerns about his children testifying. The AMC/GAL filed a response, which the court received on March 12, 2009, vehemently opposed to both the content and format of the letter. The AMC/GAL cites to the Connecticut Standards of Practice for Attorneys Guardians Ad Litem as authority promoting child testimony, if the child so wishes, absent a compelling reason to the contrary.
The court has viewed the materials and argument of counsel, as well as the relevant case law and rules of practice. Connecticut Rule of Practice § 32a-4 specifically allows children to testify at court proceedings at the discretion of the court, and under circumstances designed to minimize any negative effects on the child. The court notes that Connor is sixteen and a half years old; Caitlin will be fifteen in May. It is the representation of their AMC/GAL that these children have requested to articulate their views to this court. While father has his opinion as to the reasons these children want to testify, the court views these statements as "argument" rather than evidence.
The court must evaluate the unique factors in each case to assess whether a child's testimony is appropriate and "right and equitable under the circumstances and the law." In Re Lauren R., 49 Conn App. 763, 779 (1998). The court acknowledges a number of child protection cases in which child testimony was precluded by the court. In each of these cases, however, the court found that, based upon opinions rendered by psychological experts, that requiring the child to testify in court would have traumatic and lasting effects on the child. See: In Re Brandon, 56 Conn.App. 418, 426-27 (2000); In Re Logan, 2006 Ct.Sup. 7676, Connecticut Judicial District of Middlesex, Child Protection Session at Middletown (Jongbloed, J., April 27, 2006).
In this case, the children, through their attorney, have requested to address the court and testify in this case. The children are teenagers, and not strangers to trial proceedings, having addressed the court, in camera, in their parents' divorce action, and also having testified in their mother's recent criminal case. There is no expert opinion suggesting that the children's testimony would be detrimental to them. Importantly, the living circumstances of these children are at the center of this controversy. Accordingly, absent evidence that such testimony would be harmful to them, they have a right to be heard by this court if they wish. See: In Re Roseanne, 1993 Ct.Sup. 4559, Connecticut Superior Court Judicial District of New Haven at Meriden (DeMayo, J., May 10, 1993). "Listening to and observing the child testify was a salutary experience in itself. (The child requested through her attorney that she be permitted to address the court.)"
The AMC/GAL's Motion for Permission for child testimony is granted. The format of the testimony shall be determined on March 24, 2009, prior to the recommencement of evidence in this matter. The court impresses upon the parties that a less formal presentation to the court is permitted under P.B. § 32a-4(d), if all parties concur. As to the AMC/GAL's request to have the parents remain out of the courtroom during the testimony, the court must find by clear and convincing evidence that "that the child or youth witness would be so intimidated or inhibited that trustworthiness of the child or youth witness is seriously called into question." P.B. § 32a-4(e). The AMC/GAL has not met this burden of proof; accordingly, absent agreement of the parties, this request is denied.
It is so ordered.