                                                                            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.




      Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019       Page 2 of 30
                               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
Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019      Page 4 of 30
        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

Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019      Page 5 of 30
              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.


      Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019        Page 6 of 30
              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.

      Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019      Page 7 of 30
               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
      Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019       Page 8 of 30
      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.)

      Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019       Page 9 of 30
                                   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:



       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019     Page 10 of 30
                        (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,



       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019         Page 11 of 30
       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.




       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019        Page 12 of 30
       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

       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019    Page 13 of 30
        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.)

Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019      Page 14 of 30
[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

       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019    Page 15 of 30
       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.


       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019      Page 16 of 30
[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.


                                                       *****



       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019       Page 17 of 30
               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


       Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019           Page 18 of 30
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.




Court of Appeals of Indiana | Opinion 18A-JT-1296 | February 18, 2019    Page 30 of 30
