FILED
Feb 18 2019, 8:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
(FATHER) Curtis T. Hill, Jr.
Yvonne M. Spillers Attorney General of Indiana
Fort Wayne, Indiana
Katherine A. Cornelius
ATTORNEY FOR APPELLANT (MOTHER) Deputy Attorney General
Mark Small Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Parent-Child February 18, 2019
Relationship of Ma.H., Le.H., Court of Appeals Case No.
Lo.H., W.H., La.H., Me.H., and 18A-JT-1296
S.W. (Children) and M.H. Appeal from the Wells Circuit
(Father) and R.H. (Mother); Court
M.H (Father) and R.H. The Honorable Kenton W.
(Mother), Kiracofe, Judge
Appellants-Respondents, Trial Court Cause No.
90C01-1707-JT-22
v. 90C01-1708-JT-29
90C01-1708-JT-30
90C01-1708-JT-31
The Indiana Department of 90C01-1708-JT-32
Child Services, 90C01-1708-JT-34
90C01-1708-JT-35
Appellee-Petitioner
May, Judge.
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 1 of 30
[1] M.H. (“Father”) and R.H. (“Mother”) (collectively, “Parents”) appeal the
termination of their parental rights to Ma.H., Le.H., Lo.H., W.H., La.H.,
Me.H., and S.W. (collectively, “Children”). Father argues the trial court
violated his due process rights when it impermissibly infringed on his
constitutional right against self-incrimination under the Fifth Amendment by
requiring him to complete sex offender treatment in which he had to admit he
molested his step-daughter, R.W., as a condition of reunification with Children.
[2] In addition, Parents argue the trial court’s findings did not support its
conclusions that: (1) the conditions under which Children were removed from
Parents’ care would not be remedied; (2) the continuation of the parent/child
relationship posed a threat to the well-being of Children; and (3) termination
was in Children’s best interests.
[3] We conclude the requirement that Father admit molesting R.W. violates
Father’s Fifth Amendment right against self-incrimination and the trial court’s
reliance on his refusal to so admit as proof that his parental rights should be
terminated violates his Fourteenth Amendment right to due process. Based on
these procedural insufficiencies and the lack of sufficient findings to support the
trial court’s conclusion that termination was in the best interests of Children, we
reverse and remand.
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Facts and Procedural History 1
[4] Mother has two daughters from a previous marriage: R.W., born May 19, 1998,
who is not subject to these proceedings, 2 and S.W., 3 born May 14, 2001. 4
Parents’ marriage produced six children: Ma.H., born November 26, 2005;
Le.H., born September 8, 2007; Lo.H., born July 6, 2009; W.H., born
September 16, 2010; La.H., born February 6, 2013; and Me.H., born September
23, 2014. The facts regarding Children’s removal from Parents’ care were
noted in our earlier opinion affirming Children’s adjudication as Children in
Need of Services (“CHINS”):
On March 28, 2016, the Indiana Department of Child Services
(“DCS”) received a report alleging Father had sexually abused
his stepdaughter, R.W., multiple times throughout her
childhood. One week prior to the DCS receiving that report,
then seventeen-year-old R.W. left home without permission and
began residing with her maternal aunt and uncle. R.W. turned
eighteen on the same day the DCS began its investigation.
In response to the report and allegations, Wendy Garrett, a DCS
Family Case Manager, visited Mother and Father’s home.
Father answered the door but refused to permit Garrett to enter
1
We held oral argument on November 28, 2018, in the Indiana Court of Appeals Courtroom. We thank
counsel for their arguments.
2
Because R.W. is not a minor, does not reside with Parents, and is not subject to these proceedings, she is
not included in Children.
3
S.W. has cerebral palsy, is unable to communicate verbally, and requires the assistance of a wheelchair.
4
The father of R.W. and S.W. passed away prior to these proceedings.
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 3 of 30
the home. Mother and Father refused to cooperate with the
investigation at that time.
Following an interview with R.W. concerning her allegations of
sexual abuse, the DCS removed the Children from the home and
placed them with their maternal aunt and uncle. While
removing the Children, Garrett observed the Children had
“incredibly poor hygiene” and noted the Children’s hair was
“matted.” Garrett further observed Me.H.’s diaper was “literally
falling off, leaking.” As to the condition of the home, Garrett
described it as “deplorable” and “unsanitary.” Garrett observed
food, debris, and trash littering the floor of the home, a cluttered
kitchen filled with dirty dishes, and piles of soiled clothing
throughout the home. Garrett also noted the home did not
appear to have a shower or access to water except through a hose
brought in from outside the home. There also appeared to be
structural issues with the home with portions of the ceiling
collapsing over the Children’s sleeping space. Garrett was not
permitted to view the upstairs area because it “wasn’t anything
that had been worked on.”
On March 31, 2016, the DCS filed verified petitions alleging each
child to be a CHINS. The DCS later moved to dismiss the
CHINS petition as to R.W. because she reached the age of
eighteen. Mother and Father denied the allegations contained in
the verified petitions.
On June 10, 2016, the juvenile court held a fact-finding hearing
at which R.W. testified concerning her allegations of sexual
abuse. R.W. testified the sexual abuse began when she was a
young girl. During one instance, R.W. stated Father called her
into the bedroom of their home. When she entered the room, he
pulled her on top of him and put his hands down her pants.
R.W. did not remember how old she was when this incident
occurred. During another instance when she was about twelve
years old, R.W. awoke on the living room couch and Father was
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on top of her. R.W. stated Father’s penis touched her vagina.
Father told R.W. not to tell anyone or he would do it again.
R.W. attempted to speak to Mother about the incident but was
too embarrassed to do so. When R.W. was about thirteen years
old, Father told R.W. to take water to their horses in the barn
and insisted on coming with her. R.W. stated she knew what
Father was going to do. In the barn, Father ordered R.W. to lay
on a bale of hay and pulled his pants down. Father then inserted
his fingers into R.W.’s vagina. Father also inserted his penis into
her vagina. R.W. stated the sexual abuse stopped when she was
about fifteen or sixteen years old.
R.W. testified she did not believe Father has abused any of her
siblings, although she worried it may happen. She also stated
that when she lived in the home, she was responsible for helping
Mother and Father with the other Children, cleaning the house,
and feeding and bathing S.W. R.W. also thought Father
punished S.W. with unnecessary force. Occasionally, S.W.
would cry uncontrollably and the family struggled to calm her
down. Father used to spank her over and over in an attempt to
make her stop, but she would not. Mother would cry and tell
Father “she’s not going to stop crying if [you] just keep[ ] beating
her.”
On June 11, 2016, the juvenile court issued its order which
included its findings of fact and conclusions thereon. The
juvenile court found R.W.’s testimony and allegations to be true
and adjudicated all seven Children as CHINS. In addition to the
sexual abuse of R.W., the juvenile court also found the Children
to be CHINS due to the poor condition of the home, the fact
Father remained in the home after R.W.’s allegations came to
light, and the fact R.W., who provided care and supervision for
the Children, was no longer living in the home. The juvenile
court ordered the Children to remain in relative placement. On
August 18, 2016, the juvenile court held a dispositional hearing
at which it adopted the DCS’ recommendations to have Mother
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and Father participate in services including home based
counseling, a parental assessment, random drug screens, and a
psychological evaluation. Father was also ordered to complete a
substance abuse assessment and sex offender treatment program.
Matter of La.H., 90A02-1609-JC-2135 (Ind. Ct. App., May 31, 2017) (internal
citations to the record omitted).
[5] On February 13, 2017, the trial court entered its dispositional decree with a goal
of family reunification. The trial court ordered the Children to remain in
relative placement with maternal aunt and uncle. The trial court granted
Mother supervised visits and Father was denied visitation due to R.W.’s
allegations of sexual abuse by Father. In addition, the trial court ordered:
e. [Parents] shall allow the Family Case Manager or other
service provider to make announced or unannounced visits to
their home and permit entrance to the home to monitor progress
toward compliance with any court order.
j. [Parents] shall maintain suitable, safe and stable housing with
adequate bedding, functional utilities, adequate supplies of food
and food preparation facilities.
t. [Parents] shall complete a parenting assessment and
successfully complete all recommendations developed as a result
of the parenting assessment.
u. [Father] shall complete a substance abuse assessment and
follow all treatments [sic] and successfully complete all treatment
recommendations developed as a result of the substance abuse
assessment.
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w. [Parents] shall complete a psychological evaluation as
referred and approved by DCS and successfully complete any
recommendations that results [sic] from the evaluation.
z. [Parents] shall not commit any acts of domestic violence on
anyone including [Children], and agree that if an instance of
domestic violence occurs they will immediately report it to the
Family Case Manager.
aa. [Father] shall refrain from using any form of physical
discipline on [S.W.] while subject to the court’s jurisdiction.
[Father] shall complete a course of sex offender treatment.
(Father’s App. Vol. II at 113-14) (nonsequential lettering in original).
[6] Later in the proceedings, the trial court took under advisement Father’s
challenges to some of the requirements in the dispositional decree:
The Indiana Department of Child Services requested in its
parental participation request that “[Father] will participate in
counseling services that will focus on sexual predator discussion
due to the CHINS and DCS finding that sexual abuse occurred.”
The Indiana Department of Child Services requested that
[Father] address through counseling his sexual abuse of his step-
daughter [R.W.] and its effect on his parenting of [Children].
[Father], through counsel, requests that he not be ordered to
participate in sex offender treatment, especially if the treatment
requires that [Father] complete a polygraph as a condition of the
continuation of counseling. [Father] objects to the counseling
first because he denies that he sexually abused [R.W.]. Secondly,
[Father] objects to counseling if there is a requirement of
completing a polygraph because being ordered to participate in
and/or participating in the polygraph waives his right to remain
silent as found in the Fifth Amendment to the U.S. Constitution.
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The other area of parental participation that [Father] objects to is
the requirement at the present time that he have no contact with
[Children]. At the detention hearing on April 1, 2016 and then
again at a status hearing on May 5, 2016, because of the
allegations that [Father] had been sexually abusing [R.W.] over
the course of several years, the allegation that [R.W.] had told
[Mother] of the abuse and [Mother] did not protect her, and
because there was an on-going criminal investigation in three
counties regarding the allegations, the Court ordered that no
visitation be implemented for the present time. The Indiana
Department of Child Services and [Children’s] Guardian ad
Litem do not recommend that visitation for [Father] be
implemented.
(Id. at 80-1.) The trial court’s orders regarding sex offender treatment and
visitation did not change during the proceedings.
[7] DCS offered Mother home-based services and individual therapy, both of
which she successfully completed. However, she refused to believe Father
sexually abused R.W. DCS offered Father individual therapy, substance abuse
treatment, and sex offender treatment. The sex offender treatment was offered
through Phoenix Associates, and it required that Father admit the truth of
R.W.’s allegations in order to complete the treatment. Father refused to so
admit.
[8] Mother was compliant with all services except those that required her to admit
Father sexually abused R.W. Father completed the required assessments, but
did not engage in individual therapy and minimally participated in substance
abuse treatment, at best. On June 14, 2017, the trial court changed Children’s
permanency plan from reunification to termination. On July 25, 2017, DCS
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filed petitions to terminate Parents’ parental rights to Children. The trial court
held hearings on the termination petitions on November 15, 21, 22, and 27,
2017.
[9] On May 15, 2018, the trial court entered its order terminating Parents’ parental
rights to Children. In its order, the trial court made extensive findings
regarding Father’s refusal to participate in sex offender treatment and his
struggles with alcohol, as well as Mother’s compliance with services with the
exception of admitting that Father molested R.W. Based on those findings, the
trial court concluded termination was in the best interests of Children, that the
conditions under which Children were removed would not be remedied, and
the continuation of the parent-child relationship posed a threat to Children’s
well-being. Specifically, the trial court concluded:
8. [Father] has a history of substantiated sexual abuse of his
stepdaughter, failed to complete court-ordered counseling
services and sex offender specific treatment, and has refused to
admit he has a problem. [. . .]
9. [R.W.] testified at the CHINS fact-finding on June 10, 2016.
[R.W.] testified that she was sexually abused by [Father], on a
number of occasions. The Court found [R.W.’s] testimony
credible. [. . .]
10. Mother and [Father] have had two (2) years to accomplish
the steps necessary to have the children returned to their care. [. .
.]
(Id. at 122-3.)
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Discussion and Decision
[10] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.
Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
reasonable inferences most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[11] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
subordinate the interests of the parents to those of the children, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own children should not be terminated solely
because there is a better home available for the children, id., but parental rights
may be terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[12] To terminate a parent-child relationship, the State must allege and prove:
(B) that one (1) of the following is true:
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(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[13] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and whether the findings support the judgment.
Id. “Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
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102 (Ind. 1996). If the evidence and inferences support the juvenile court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
Father’s Fifth Amendment Rights
[14] The Fifth Amendment to the United States Constitution provides, in relevant
part, that no person “shall be compelled in any criminal case to be a witness
against himself.” The Fourteenth Amendment extends this protection to state
proceedings. Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014) (quoting Withrow
v. Williams, 507 U.S. 680, 688-9 (1993), reh’g denied). “[T]his prohibition not
only permits a person to refuse to testify against himself at a criminal trial . . .
but also ‘privileges him not to answer official questions put to him in any other
proceeding, civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.’” Id. (quoting Minnesota v.
Murphy, 465 U.S. 420, 426 (1984), reh’g denied). “The Fifth Amendment
prohibits only compelled testimony that is incriminating.” Id. (quoting Hiibel v.
Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 190 (2004), reh’g denied).
[15] Further,
a witness protected by the privilege may rightfully refuse to
answer unless and until he is protected at least against the use of
his compelled answers and evidence derived therefrom in any
subsequent criminal case in which he is a defendant. Absent
such protection, if he is nevertheless compelled to answer, his
answers are inadmissible against him in a later criminal
prosecution.
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Id. (quoting Lefkowitz, 414 U.S. at 78). “To sustain the privilege, it need only be
evident from the implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result.” Id. at
925-6 (quoting Hoffman v. United States, 341 U.S. 479, 486-7 (1951)). Answers
are incriminating not only when they “would in themselves support a
conviction,” but also when they would “furnish a link in the chain of evidence”
necessary to prosecute a person for a crime. Id. at 926 (quoting Hoffman, 341
U.S. at 486).
[16] Here, Father was accused of sexually abusing R.W. in several different
counties, based on the family’s residence at the time of each allegation. All
three counties investigated the allegations, with which it is undisputed Father
fully cooperated, but ultimately the prosecutors “made the decision not to file
criminal charges[.]” (Tr. Vol. II at 128.) Despite the lack of evidence to bring
criminal charges, DCS insisted Father complete sex offender treatment, and the
trial court agreed. Father objected multiple times to the completion of this
requirement. In an order from January 31, 2017, the trial court addressed those
concerns:
[Father], through counsel[,] requests that he not be ordered to
participate in the sex offender treatment, especially if the
treatment requires that [Father] complete a polygraph as a
condition of the continuation of the counseling. [Father] objects
to the counseling first because he denies that he sexually abused
[R.W.]. Secondly, [Father] objects to counseling if there is a
requirement of completing a polygraph because being ordered to
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participate in and/or participating in the polygraph waives his
right to remain silent as found in the Fifth Amendment to the
U.S. Constitution.
The Indiana Department of Child Services requested in its
parental participation request as follows: “[Father] will
participate in counseling services that will focus on sexual
predator discussion due to the CHINS and DCS finding that
sexual abuse occurred.” The Indiana Department of Child
Services requested that [Father] address through counseling his
sexual abuse of his step-daughter, [R.W.], and its effect on his
parenting of [Children]. . . .
*****
. . . Here the recommendation that [Father] participate in sex
offender training is reasonable considering this Court found by a
preponderance of the evidence that [Father] had sexually abused
[R.W.] over a period of years when she was a minor child.
Certainly, as Indiana courts have stated [Father] does not leave
his constitutional rights at the door when he enters sex offender
treatment and may refuse to answer questions which he believes
might be used against him. Should he invoke his Fifth
Amendment right; [sic] however, the Court may also infer what
his answer might have been and whether or not he has
successfully completed the treatment program. Ultimately, this
Court will have to make a determination whether or not the
conditions that lead [sic] to the [C]hildren’s removal have been
remedied. If [Father] refuses to and has not successfully
completed the treatment program, it would appear that the
conditions that lead [sic] to the [C]hildren’s removal have not
been remedied.
(Father’s App. Vol. II at 76-7.)
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[17] The trial court’s own statements here illustrate why the Fifth Amendment right
is so extremely important. The Court seems to consider Father’s exercise of his
constitutional right to remain silent to be equivalent to an admission of guilt.
The trial court also seemed to suggest Father had a choice – either admit the
molestation or take a polygraph. Father argues this is not a constitutionally-
permissible choice – it is an impermissible exercise of the trial court’s power to
force Father to waive his Fifth Amendment right against self-incrimination.
(Br. of Father at 15.)
[18] DCS did not respond to the merits of Father’s Fifth Amendment argument.
Instead, DCS contends the law-of-the-case doctrine applies here and can be
used to force Father to make an admission of sexual abuse. (See Br. of Appellee
at 22.) In support, DCS cites Father’s appeal of the underlying CHINS
determination, in which our court affirmed the trial court’s finding that Father
committed sexual abuse against R.W. See Matter of La.H., slip op. at 4 (affirming
CHINS adjudication based, in part, on R.W.’s testimony of Father’s sexual
abuse).
[19] The law-of-the-case doctrine provides that an appellate court’s determination of
a legal issue binds both the trial court and the appellate court in any subsequent
appeal involving the same case and substantially the same facts. Dutchmen Mfg.,
Inc. v. Reynolds, 891 N.E.2d 1074, 1082 (Ind. Ct. App. 2008), trans. denied. The
purpose of the doctrine is to minimize unnecessary re-litigation of legal issues
once they have been resolved by an appellate court. Id. Accordingly, all issues
decided directly or by implication in a prior decision are binding in all further
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portions of the same case. Id. However, questions not conclusively decided in
the earlier appeal do not become the law of the case. Id. at 1083. Contrary to
DCS’s assertion, the law of the case doctrine does not apply here to prohibit
Father from invoking the Fifth Amendment.
[20] First of all, while the CHINS and termination proceedings involve the same
parties (i.e., DCS and Parents) and the same issue (i.e., whether Father sexually
abused R.W.), the burdens of proof in CHINS and termination proceedings are
different. The burden of proof in a CHINS case is preponderance of the
evidence, Ind. Code § 31-34-12-3, while the burden of proof in a termination of
parental rights case is clear and convincing evidence, Ind. Code § 31-37-14-2,
which is defined as “[e]vidence indicating that the thing to be proved is highly
probable or reasonably certain.” Clear and convincing evidence, Black’s Law
Dictionary 674 (10th ed. 2014). Clear and convincing “is a greater burden than
preponderance of the evidence . . . .” Id. Because the second proceeding
required a greater level of proof, the first proceeding could not “conclusively
decide” issues to be decided in the second proceeding. See McNabb v. Mason,
148 Ind. App. 233, 241, 264, N.E.2d 623, 627 (1970):
[A] trial court upon summary judgment motion cannot, nor can
we upon appeal, prejudge a plaintiff’s ability to sustain his, or in
this instance, her burden of proof upon the factual issues. The
existence of factual issues, however, is quite a different question
from that concerning the burden of establishing, as a matter of
evidentiary proof, the facts alleged by plaintiff. We are here
concerned only with the former question. We cannot prejudge
that matter.
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[21] Second, the admission DCS asserts Father should have to make in treatment is
not an admission that he has the luxury of making only by a preponderance of
the evidence or by clear and convincing evidence. If Father admits that he
sexually abused a child, it will be an admission that meets the burden of proof
in criminal proceedings, which is “beyond a reasonable doubt.” Ind. Code §
35-41-4-1. See Everhart v. Scott Cty. Office of Family & Children, 779 N.E.2d 1225,
1231 (Ind. Ct. App. 2002) (Indiana’s privileged communication laws meant
“the social worker could have disclosed any information revealed by Everhart
which would have indicated his guilt in the abuse of A.E. Therefore, Everhart’s
only recourse to protect himself was to invoke his Fifth Amendment right
against self-incrimination as he did.”)
[22] Additionally, while the State characterizes the sex offender treatment as one
that gives Father the option to admit to the allegations OR take the polygraph,
in reality, after taking and failing the polygraph, the sex offender treatment
continued to hinge on Father’s admission of the allegations, as evidenced in the
trial court’s findings:
93. Due to [Father’s] denial of the allegations, Michael, Phoenix
Associates’ service provider, suggested that [Father] take a
polygraph. If the polygraph showed that [Father] was telling the
truth, then [Father] would be released from the program. If the
polygraph showed that [Father] was deceptive, then [Father] would have
to admit to the allegations.
*****
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97. [Father] completed his polygraph examination on May 15,
2017.
98. The polygraph results indicated that [Father] was deceptive
to the main issue, which was the sexual abuse that occurred by
[Father] on his step-daughter, [R.W.].
99. Based on the polygraph examination, Phoenix
recommended that [Father] complete its Sex Offender Management
and Monitoring program, which would require [Father] to admit and
take ownership of the sexual abuse against his step-daughter, [R.W.].
(Father’s App. Vol. II at 118) (emphases added).
[23] Our Indiana Supreme Court addressed the Fifth Amendment implications of
admitting a sexual offense as part of sex offender treatment in Bleeke. In that
case, Bleeke was on parole following his conviction of residential entry and
attempted criminal deviate conduct. Bleeke, 6 N.E.3d at 912. As part of his
parole, Bleeke was required to participate in and successfully complete a court-
approved sex offender treatment program. Id. As part of the program, Bleeke
“was required to admit guilt for his offense; refusal to do so, or to otherwise
deny responsibility for the offense, would result in him being unsuccessful in his
treatment[.]” Id.
[24] Our Indiana Supreme Court held this requirement, that Bleeke admit to his
offense, which he denied, had the potential to violate Bleeke’s Fifth
Amendment right against self-incrimination because “from the implications of
the question, in the setting in which it is asked, a responsive answer to the
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question or an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result.” Id. at 927 (quoting Hoffman, 341
U.S. at 486-7). Our Indiana Supreme Court then examined whether Bleeke was
compelled to “to provide self-incriminating testimony because of the SOMM 5
program requirements that he admit his guilt to the underlying conviction and
answer questions about his prior sexual history.” Id. at 925 (footnote added).
Our Indiana Supreme Court concluded Bleeke’s Fifth Amendment rights were
not implicated:
Here, Bleeke’s compliance with the SOMM program and
performance of polygraphs is an express condition of his parole
and is highly relevant to his successful reintegration into society.
And this is not a circumstance where the trial court is setting a
more lenient sentence for Bleeke, and then threatening to
increase that sentence if Bleeke fails to admit his guilt for the
underlying offense.
*****
Bleeke’s early release from imprisonment to parole is a matter of
executive and legislative grace and clemency. It is a privilege
afforded to him - a lower grade of punishment - for his
compliance with prison rules and policies, including the SOMM
program, as well as any number of other behavioral or
rehabilitative programs that the DOC and General Assembly
might endorse. It neither excuses, nor waives, nor vitiates the
remainder of his fixed term of his imprisonment. And the
5
“SOMM” refers to Indiana’s Sex Offender Management and Monitoring Program, which is program
available to sex offenders while incarcerated. Indiana Sex Offender Management and Monitoring,
https://www.in.gov/idoc/3512.htm (last visited January 9, 2019).
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 19 of 30
revocation of his parole does not mean he goes from being at full
liberty to being fully detained, as he portrays it - instead it means
he goes from being detained at a comparatively low level back to
being fully detained. In that way it is little different, in the pure
legal sense, than him being reassigned from a minimum-security
facility, or a community transition program, to a medium- or
maximum-security facility for violating prison rules and policies.
Id. at 937-38.
[25] The case before us is distinguishable, as the liberty interest Father has at stake
here is significant – his right to remain free of incarceration without the State
proving his guilt beyond a reasonable doubt based on his coerced admission.
Contra id. at 938 (“the revocation of [Bleeke’s] parole does not mean he goes
from being at full liberty to being fully detained”). Because Father has not been
convicted of crimes based on R.W.’s allegations, we agree the requirement that
he admit committing those crimes implicates his Fifth Amendment right against
self-incrimination. See McCarthy v. Arndstein, 266 U.S. 34, 41 (1924) (holding
the privilege “applies alike to civil and criminal proceedings, wherever the
answer might tend to subject to criminal responsibility him who gives it”).
Father’s Due Process Rights
[26] Because Father’s Fifth Amendment right was implicated, we turn to whether
his assertion of that right resulted in a deprivation of his due process rights. In a
termination of parental rights proceeding, parents have certain due process
rights:
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 20 of 30
When a State seeks to terminate the parent-child relationship, it
must do so in a manner that meets the requirements of the due
process clause. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
71 L.Ed.2d 599 (1982). Although due process has never been
precisely defined, the phrase embodies a requirement of
“fundamental fairness.” E.P. v. Marion County Office of Family &
Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting
Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 26, 101 S. Ct. 2153,
68 L.Ed.2d 640 (1981)). Citing Mathews v. Eldridge, 424 U.S. 319,
96 S. Ct. 893, 47 L.Ed.2d 18 (1976), this court has recently
acknowledged that the nature of the process due in parental
rights termination proceedings turns on a balancing of three
factors: (1) the private interests affected by the proceeding, (2) the
risk of error created by the State’s chosen procedure, and (3) the
countervailing governmental interest supporting use of the
challenged procedure. A.P. v. Porter County Office of Family and
Children, 734 N.E.2d 1107 (Ind. Ct. App. 2000)[, reh’g denied].
J.T. v. Marion Cty. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct.
App. 2000), reh’g denied, trans. denied, abrogated on other grounds by Baker v. Marion
Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004) (abrogating
J.T.’s holding regarding sufficiency of counsel).
[27] Father acknowledges that both DCS and Parents have substantial interests
affected by the termination proceedings, and he argues there is an
insurmountable risk of error created by DCS’s and the trial court’s actions.
Specifically, Father contends:
[N]umerous due process violations occurred which culminated in
the termination of his parental rights, and further led to a lack of
evidence to support the Trial Court’s determination. Specifically,
the allegations that a child (now adult) was sexually abused by
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 21 of 30
Father, and that victim is not a party to the action and there were
no allegations of similar abuse on any of the six (6) biological
children of this action. Further, Father argues that he was given
an impossible decision and was compelled to testify against
himself and forfeit his Fifth Amendment Constitutional right, or
lose his constitutional right to the care, custody and control of his
children by himself and his wife. Said another way, Father
argues the only path made available to him in order to maintain
his right to raise his children with his Wife, was to admit to a
crime he maintains he did not commit, or to use a polygraph test
to prove his innocence, even though polygraph tests have been
long-held as inadmissible due to their unreliability.
(Br. of Father at 28-9.)
[28] We addressed a similar issue in Everhart, in which a father’s rights were
terminated in part because he invoked his Fifth Amendment right against self-
incrimination and would not admit as part of court-ordered therapy that he had
abused a child. In Everhart, we set forth a series of factors, based on those used
in a criminal context, to be used to determine whether the trial court’s decision
to terminate parental rights was prejudicially impacted by the parent’s Fifth
Amendment silence: “(1) the use to which the fact of the invocation of the right
against self-incrimination is used, (2) who elected to pursue the line of
questioning, (3) the amount of other evidence supporting the termination of
parental rights, and (4) the intensity and frequency of the reference.” Everhart,
779 N.E.2d at 1231. We held that Everhart was not denied due process because
significant other evidence supported the termination of his parental rights. Id.
at 1235.
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 22 of 30
[29] Here, Father’s refusal to admit he sexually abused R.W., which precluded his
completion of sex offender treatment, was a large part of the trial court’s reason
for terminating his parental rights. Mother also denied Father’s abuse of R.W.,
and her failure to acknowledge the alleged abuse and create a safety plan to
address any risk was the only reason her parental rights were terminated,
because she successfully completed all available services. The trial court also
found that Father refused to participate in individual counseling and minimally
participated in substance abuse treatment, which would be sufficient to
terminate Father’s parental rights under circumstances where the entire process
is not tainted with the violation of Father’s constitutional rights.
[30] While we acknowledge DCS is not required to offer every possible type of
service, we believe the services here, considering the special circumstances of
the case, were not offered in a way that was conducive to reunification of the
family. Father has been denied access to Children for the pendency of the
proceedings based on a substantiated but unproven allegation. The
requirements of this treatment, we have concluded, violate Father’s Fifth
Amendment right against self-incrimination.
[31] There is also conflicting evidence regarding Father’s participation in substance
abuse treatment. Father’s therapist from Dockside testified Father participated
in the required number of meetings, but did not seem to be engaged in the
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 23 of 30
treatment or to be receiving benefit therefrom. 6 However, Father’s therapist
from Dockside also testified he had not witnessed Father under the influence of
alcohol and Father consistently tested negative for alcohol. Father’s therapist
from Dockside also indicated DCS’s referral was based in part on an incident in
which Father was arrested for driving under the influence of alcohol over ten
years prior to DCS involvement. Finally, the trial court found Father did not
complete individualized therapy because he did not attend the scheduled
sessions, however, Father testified at the termination hearing that, absent those
services related to the sexual abuse allegations, he believed he was compliant
with the services ordered by the trial court in its dispositional decree.
[32] Therefore, we conclude the use of Father’s silence and subsequent results of the
polygraph violated Father’s due process rights because, based on the totality of
6
We also note that it is troubling that, at the oral argument, DCS asserted the termination of parental rights
could be supported by speculation.
Judge Robb: When there is nothing in the record, can we terminate parental rights based
on a supposition? Just a simple yes or no would be sufficient.
DCS: Yes.
Judge Robb: We can terminate parental rights on a supposition without evidence in the
record to support that supposition?
DCS: Well, I guess I disagree that there’s no evidence in the record, your honor.
Judge Robb: Well you haven’t shown it to us yet. Thank you.
Indiana Court of Appeals Oral Arguments Online, R.H. (Mother) and M.H. (Father) v. Indiana Department of
Child Services, (November 28, 2018, 43:09 - 43:31),
https://mycourts.in.gov/arguments/default.aspx?&id=2274&view=detail&yr=&when=&page=1&court=ap
p&search=&direction=%20ASC&future=False&sort=&judge=&county=&admin=False&pageSize=20 (last
accessed January 11, 2019). This is an incorrect statement of law. See, e.g., In re V.A., 51 N.E.3d 1140, 1146
(Ind. 2016) (“the constitutional guarantees of the Fourteenth Amendment and the heightened burden
requirements of our state statutes dictate that such determination must be founded on factually-based
occurrences as documented in the record - not simply speculation or possible future harms.”) (emphasis in
original).
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 24 of 30
the circumstances, the violation of Father’s Fifth Amendment right unfairly
influenced his participation and completion of other required services. 7 See
Matter of C.M.S.T., 111 N.E.3d 207 (Ind. Ct. App. 2018) (unique, cumulative
circumstances existing during CHINS proceedings which affected parents’
ability to engage in and complete services warranted reversal of termination of
parents’ rights to their respective children). Accordingly, we disregard any
findings related to Parents’ failure to complete any requirement of the
dispositional decree related to the allegations of sexual abuse made by R.W.
See In re B.J., 879 N.E.2d 7, 21 (Ind. Ct. App. 2008) (“This Court is to disregard
any special finding that is not proper or competent to be considered.”), trans.
denied.
[33] Regarding Mother, it is undisputed between the parties that Mother completed
all services as ordered except those that addressed the sexual abuse allegations
against Father. As those findings were in error, there were no other findings to
support the termination of Mother’s parental rights to Children. Therefore, we
reverse the termination of Mother’s parental rights to Children. See Bester, 839
N.E.2d at 153 (reversal of termination of parental rights appropriate when there
are no findings to support the trial court’s conclusions regarding termination).
7
We note DCS did not attempt to locate a sex offender treatment program that did not require Father to
admit to the allegations against him. While DCS certainly is not required to exhaustively search for relevant
rehabilitative treatment programs that suit parents’ preferences, see, e.g., Steward v. Randolph Cty. Office of
Family & Children, 804 N.E.2d 1207, 1214 (Ind. Ct. App. 2004) (DCS is not required to offer alternative
programs to parents to ensure compliance with dispositional order), trans. denied, the services required by
DCS ought not violate parents’ constitutional rights.
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 25 of 30
Conclusion
[34] The requirement that Father admit to sexually abusing R.W. as part of sex
offender treatment violated Father’s Fifth Amendment rights. Because of this
unusual situation, we reverse the termination of Mother’s and Father’s parental
rights to Children. We remand to the trial court for reinstatement of the CHINS
cases, a re-examination of the requirements for reunification, and a revised
dispositional order outlining the services consistent with the holdings in this
opinion that Parents must complete to reunify with Children.
[35] Reversed and remanded.
Baker, J., concurs.
Robb, J. dissents with separate opinion.
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 26 of 30
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Parent-Child Court of Appeals Case No.
Relationship of Ma.H., Le.H., 18A-JT-1296
Lo.H., W.H., La.H., Me.H., and
S.W. (Children) and M.H.
(Father) and R.H. (Mother);
M.H. (Father) and R.H. (Mother),
Appellants-Respondents,
v.
The Indiana Department of Child
Services,
Appellee-Petitioner.
Robb, Judge, dissenting.
I respectfully dissent.
[36] I agree with the majority that it is a bedrock principle of our criminal justice
system that the Fifth Amendment protects a person from being involuntarily
called as a witness against himself in a criminal case and also protects a person
from having the refusal to testify in a civil case used against him in subsequent
criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973); see slip op. at
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 27 of 30
¶¶ 14-15. As a practical matter, I believe the majority opinion is written with
too broad a brush: if a parent in a future CHINS/termination case says he or
she did not do the act which precipitated DCS involvement in the family and
refuses to participate in treatment designed to address the issue for fear of
criminal reprisals, then DCS could not prove a termination case. It would
encourage refusal to participate in treatment.
[37] Moreover, in focusing on the possible criminal repercussions of an admission,
the majority fails to acknowledge that a civil defendant who chooses to avail
himself of the Fifth Amendment privilege “does so at his peril” because the
Fifth Amendment does not forbid adverse inferences against a party to a civil
proceeding who refuses to testify in that proceeding. Baxter v. Palmigiano, 425
U.S. 308, 318 (1976); see also Hardiman v. Cozmanoff, 4 N.E.3d 1148, 1152 (Ind.
2014). In its January 31, 2017, Order on Matters Taken Under Advisement;
Parental Participation and Visitation, the trial court noted as much:
Certainly, as Indiana courts have stated, [Father] does not leave
his constitutional rights at the door when he enters sex offender
treatment and may refuse to answer questions which he believes
might be used against him. Should he invoke his Fifth
Amendment right; however, the Court may also infer what his
answer might have been and whether or not he has successfully
completed the treatment program.
[38] Appendix of Appellant/Father, Volume II at 76-77. In other words, the Fifth
Amendment shields Father from being compelled to give possibly incriminating
statements but it does not shield him from the consequences of asserting that
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 28 of 30
right. Here, the consequences included the possibility of termination of his
parental rights for failing to participate in meaningful therapy. 8
[39] R.W. testified at the CHINS fact-finding hearing and again at the termination
fact-finding hearing that she was sexually abused by Father when she was a
minor living in the home. Father denied the abuse and despite polygraph
results that indicated he was being deceptive regarding this issue, refused to
participate in sex offender treatment as a part of the family reunification plan.
The trial court was in the position of determining the credibility of the witnesses
and specifically found R.W.’s testimony about sexual abuse by Father to be
credible. App. of Appellant/Father, Vol. II at 112. In addition, the trial court
was entitled to draw an adverse inference from Father’s invocation of the Fifth
Amendment to avoid the requirements of the treatment program.
[40] However, even accepting Father’s position that he should not have been
required to take a polygraph test or admit to wrongdoing and making no
negative inference from his invocation of the Fifth Amendment, the essence of
8
The trial court found during the CHINS proceeding that the DCS recommendation that Father participate
in sex offender treatment was reasonable because the court had determined by a preponderance of the
evidence that Father had sexually abused R.W. when she was a minor. See id. at 76. DCS was required to
provide options for sex offender treatment programs within sixty miles of Father’s residence and to make a
referral to Father’s chosen program. See id. at 77. The trial court’s order did not require Father to admit to
the truth of the sexual abuse allegations and it did not require Father to participate in a specific therapy
program that would mandate an admission of guilt; rather, it required him to participate in a sex offender
treatment program of his own choosing. Several states have concluded that there is a distinction between a
court-ordered case plan that mandates admission of guilt either through a direct admission or participation in
a treatment program that specifically mandates an admission for family reunification and one that requires
meaningful therapy. See Matter of A.D.L., 402 P.3d 1280, 1285-86 (Nev. 2017) (citing cases from other
jurisdictions).
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019 Page 29 of 30
this case is that which we often encounter: Father says he did nothing wrong
and R.W. says otherwise. The trial court found R.W. to be a more credible
witness than Father and again, determining credibility and weighing conflicting
evidence is the trial court’s province. In re E.M.L., 103 N.E.3d 1110, 1115 (Ind.
Ct. App. 2018), trans. denied. Conceding to Father the Fifth Amendment issue,
we are left with Father’s denial, R.W.’s testimony, a court order that did not
specifically require an admission of wrongdoing as a requirement for
reunification, Father’s failure to participate in treatment in even a limited way,
and the trial court’s credibility determination. There are safety concerns that
have not yet been addressed due to Father’s minimal compliance and lack of
engagement and Mother’s unwillingness to acknowledge and implement a plan
to address the safety concerns. Therefore, the trial court’s determination there
has not been substantial progress towards reunification is not clearly erroneous
and I would affirm the trial court’s judgment.
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