                                                                      FILED
                                                                 Oct 31 2019, 12:16 pm

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




                             IN THE

     Indiana Supreme Court
               Supreme Court Case No. 19S-JT-323

 In the Matter of Ma.H., Le.H., Lo.H., W.H., La.H.,
Me.H., and S.W. (Minor Children); M.H. (Father) and
                   R.H. (Mother),
                      Appellants (Respondents)

                                  –v–

       Indiana Department of Child Services,
                         Appellee (Petitioner)


          Argued: June 18, 2019 | Decided: October 31, 2019

                Appeal from the Wells Circuit Court,
           Nos. 90C01-1707-JT-22, -29, -30, -31, -32, -34, -35
              The Honorable Kenton W. Kiracofe, Judge

      On Petition to Transfer from the Indiana Court of Appeals,
                           No. 18A-JT-1296



                   Opinion by Chief Justice Rush
          Justices David, Massa, Slaughter, and Goff concur.
Rush, Chief Justice.
   Civil child welfare proceedings often implicate a parent in criminal
activity. In such cases, the trial court needs to strike a delicate balance: it
must safeguard children’s well-being, while protecting parents’
constitutional rights.

   Here, a mother and a father appeal the termination of parental rights to
seven children, arguing that the trial court violated the father’s Fifth
Amendment privilege against self-incrimination. After a court found that
the father sexually abused his stepdaughter, he was required to select and
complete a sex-offender treatment program. He briefly attended a
program but stopped when it required an admission of wrongdoing. The
father has always denied the sexual abuse, and the mother has likewise
never believed her daughter.

   We find no constitutional violation. The trial court’s order did not
require the father to admit to a crime at the risk of losing his parental
rights. And because the parents failed to address the sexual abuse
allegations—several of which a court found were true—we find sufficient
evidence to support the trial court’s termination decision and affirm.

Facts and Procedural History
   M.H. (Father) and R.H. (Mother) have a blended, Amish family of nine
children. Seven of the children were born during their marriage; the oldest
two, S.W. and R.W., are Mother’s daughters from a prior relationship.1

   In early spring 2016, seventeen-year-old R.W. abruptly left home.
About a week later, the Department of Child Services (DCS) received a
report alleging that Father had sexually abused R.W. for years and that the
condition of Parents’ home was unacceptable. Parents denied both
allegations; but after a detective interviewed R.W., DCS removed the




1Neither Parents’ youngest child nor R.W. are part of this appeal. Thus, the term “children”
hereafter refers only to the seven other children.



Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019                     Page 2 of 13
remaining children from the home. They were placed with their maternal
uncle and his family, who are also part of the Amish community.

   DCS alleged the children were in need of services (CHINS) based on
the Parents’ actions. At the hearing, DCS provided testimony on the
home’s deplorable condition, and R.W. testified to numerous and specific
instances of sexual abuse by Father. The court found the children to be
CHINS, noting that R.W.’s testimony was credible and that most of the
allegations in DCS’s petition were true.

   As a result, Parents were ordered to complete services, including ones
to address sexual abuse. Specifically, Father had to complete sex-offender
treatment; and Parents were required to create a safety plan to protect the
children from future abuse.

   Father objected to the sex-offender treatment. He was concerned that
completing such a program would involve a polygraph examination,
which he argued would require him to waive his Fifth Amendment
privilege against self-incrimination. The trial court disagreed. In its order,
the court explained that Father could refuse to answer questions during
treatment, but that if Father chose to remain silent, then the court could
“infer what his answer[s] might have been.”

   About a month later, Father began sex-offender treatment. But because
of his continued denial, little progress was made. So, the therapist
recommended a polygraph test to show that Father had done nothing
wrong—“to help things move forward.” Father took the polygraph, and
the results showed he was “deceptive” when asked about the sexual
abuse.

  At that point, the therapist could not continue the program with Father
unless he admitted wrongdoing. Father refused and stopped attending.
During this time, Mother never wavered in her support of Father or in her
belief that R.W. lied about the sexual abuse. Thus, Father never completed
sex-offender treatment, and Parents never created a safety plan.

  In late summer 2017, DCS petitioned to terminate parental rights, citing
Parents’ failure to adequately address the CHINS court’s finding that
Father sexually abused R.W. During a four-day hearing, R.W. described


Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019       Page 3 of 13
Father’s sexual abuse and explained that she twice told Mother about it,
including once after the first encounter. The court also heard testimony
about Father’s failure to complete sex-offender treatment; Parents’
continued denial of R.W.’s allegations; and Parents’ failure to develop a
safety plan. Additionally, both the children’s guardian ad litem (GAL) and
a DCS caseworker recommended termination. A few months later, the
trial court terminated Parents’ parental rights.

   Mother and Father both appealed, and a divided panel reversed. In re
Ma.H., 119 N.E.3d 1076, 1090 (Ind. Ct. App. 2019). The majority concluded
that Father’s Fifth Amendment rights were violated and reversed the
termination. Id. Judge Robb dissented, believing that no Fifth Amendment
violation occurred and that sufficient evidence supported the court’s
decision. Id. at 1091–92, 1091 n.8 (Robb, J., dissenting).

  DCS petitioned for transfer, which we granted, vacating the Court of
Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review
   This challenge to the trial court’s termination decision invokes two
standards of review.

   We affirm a trial court’s termination decision unless it is clearly
erroneous; a termination decision is clearly erroneous when the court’s
findings of fact do not support its legal conclusions, or when the legal
conclusions do not support the ultimate decision. In re E.M., 4 N.E.3d 636,
642 (Ind. 2014). We do not reweigh the evidence or judge witness
credibility, and we consider only the evidence and reasonable inferences
that support the court’s judgment. In re K.E., 39 N.E.3d 641, 646 (Ind.
2015). But to the extent our analysis depends on whether Father’s Fifth
Amendment privilege against self-incrimination was violated, we review
that purely legal question de novo. See Bleeke v. Lemmon, 6 N.E.3d 907, 917
(Ind. 2014).




Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019     Page 4 of 13
Discussion and Decision
   Parents have a fundamental right to raise their children—but this right
is not absolute. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). When
parents are unwilling to meet their parental responsibilities, their parental
rights may be terminated. Id.

   To terminate parental rights, Indiana law requires DCS to prove certain
elements by clear and convincing evidence. Ind. Code §§ 31-35-2-4(b)(2);
31-37-14-2 (2018). We focus today on two: (1) a reasonable probability that
the conditions that resulted in the children’s removal will not be
remedied;2 and (2) that termination is in the children’s best interests. I.C. §
31-35-2-4(b)(2)(B)(i), (C).

   Here, the trial court determined that DCS met its burden on both
elements. Parents argue that the trial court’s conclusions are clearly
erroneous.

   Specifically, they assert that the trial court violated Father’s Fifth
Amendment privilege against self-incrimination; and thus, the trial court
erred in considering evidence of Parents’ response to services addressing
the CHINS court’s finding that Father sexually abused R.W. Father argues
that, when the improperly considered evidence is removed, there remains
insufficient evidence to support the court’s conclusion that there is a
reasonable probability that the conditions that resulted in the children’s
removal will not be remedied. And each parent similarly argues that there
is insufficient evidence to support the trial court’s conclusion that
termination is in the children’s best interests. We disagree.

  Our review of the record shows there is no constitutional violation
because the court never ordered Father to admit to a crime. We also find




2 Section 31-35-2-4(b)(2)(B) requires DCS to make one of three showings. The trial court here
found that DCS met its burden on two: (1) a reasonable probability that the reasons for
removal will not be remedied; and (2) a reasonable probability that the continuation of the
parent-child relationship poses a threat to the children’s well-being. I.C. § 31-35-2-4(b)(2)(B)(i),
(ii). Because we determine that the court’s findings support its conclusion on the former, we
need not address the latter. See K.T.K., 989 N.E.2d at 1234.



Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019                          Page 5 of 13
that the evidence favorable to the trial court’s decision supports its factual
findings, which in turn support its challenged legal conclusions. Thus,
Parents have failed to show that the trial court’s termination decision is
clearly erroneous.


I.    There is no Fifth Amendment violation.
  CHINS proceedings and proceedings to terminate parental rights
(TPR), though non-criminal, can implicate a parent in criminal activity.
For example, a CHINS or TPR petition may include allegations of neglect,
physical abuse, illegal drug activity, human trafficking, endangerment, or
sexual abuse—each its own criminal offense carrying serious
consequences. Compare I.C. §§ 31-34-1-1, -2(a), -2(d), -3, -4, with Ind. Code
§§ 35-46-1-4, -42-2-1, -42-4-1, -48-4-1.2 (2018).

   As a result, trial courts presiding over CHINS and TPR proceedings
must remain conscientious of possible criminal implications and
safeguard a parent’s constitutional rights—such as those guaranteed by
the Fifth Amendment, including the privilege against self-incrimination.
Father argues that the trial court violated this privilege “by expressly
requiring him to confess to a crime for which he was never charged.”

   Generally, in any proceeding—civil or criminal—the Fifth Amendment
protects an individual from being compelled to answer questions when
the answers might be used in a future criminal proceeding. See Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973); Bleeke, 6 N.E.3d at 925. This means that, in
CHINS and TPR proceedings, a court may not compel a parent’s
admission to a crime—if the admission could be used against him or her
in a subsequent criminal proceeding—under the threat of losing parental
rights. See In re A.D.L., 402 P.3d 1280, 1285 (Nev. 2017) (collecting cases).
See generally Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977) (“[W]hen a
State compels testimony by threatening to inflict potent sanctions unless
the constitutional privilege is surrendered, that testimony is obtained in
violation of the Fifth Amendment[.]”).

   Yet, in civil proceedings, a court can draw a negative inference from a
claim of the Fifth Amendment privilege against self-incrimination. See


Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019       Page 6 of 13
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); Hardiman v. Cozmanoff, 4
N.E.3d 1148, 1152 (Ind. 2014). To that end, the trial court here noted that
Father could choose not to answer questions during sex-offender
treatment, but the court could then “infer what his answer[s] might have
been.” The trial court was correct. Ultimately, though, Father voluntarily
took the polygraph, so there was no silence from which to draw an
adverse inference. Our inquiry then is whether any court action forced
Father to choose between losing his parental rights and waiving his right
against self-incrimination.

   “[T]here is a distinction between a court-ordered case plan that
mandates admission of culpability for family reunification and one that
requires meaningful therapy for family reunification.” A.D.L., 402 P.3d at
1286. While the former constitutes a Fifth Amendment violation, the latter
does not. Id. Here, the trial court ordered Father to “select” and “complete
a course of sex offender treatment” from options that DCS would provide,
within sixty miles of his home. Father began a sex-offender treatment
program that ultimately required him to admit wrongdoing after a
voluntary polygraph showed deceptive denials of misconduct. Refusing
to admit to sexual abuse, Father stopped attending.

   We recognize that Father attended a program that eventually required
an admission of guilt. But the trial court’s order did not compel Father to
admit to a crime; the order simply required Father to select and complete
a course of sex-offender treatment. See Ma.H., 119 N.E.3d at 1091 n.8
(Robb, J., dissenting). Other states have made a similar distinction. See In
re A.W., 896 N.E.2d 316, 326 (Ill. 2008) (“[A] trial court may order a service
plan that requires a parent to engage in effective counseling or therapy,
but may not compel counseling or therapy requiring the parent to admit
to committing a crime.”); In re C.H., 652 N.W.2d 144, 150 (Iowa 2002)
(“The State may require parents to otherwise undergo treatment, but it
may not specifically require an admission of guilt as part of the
treatment.”).

   Father, nonetheless, asserts that the trial court’s order “created a
requirement for [him] to testify against himself and make an admission of
a specific crime.” In other words, Father seemingly argues that, even if the



Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019        Page 7 of 13
court order didn’t explicitly mandate him to participate in a program that
would require an admission, this was the order’s practical effect. Yet,
Father points to no evidence that he sought out a different program; that
he requested DCS to provide him with other options; or that there were no
treatment programs available, within sixty miles of his home, that did not
require an admission of sexual abuse. See A.W., 896 N.E.2d at 326 (noting
that the court did not order the parent “to complete a specific program
requiring him to admit abuse” and pointing out that the parent had
“presented no evidence that there are no other treatment programs
available offering sex offender counseling without requiring an admission
of sexual abuse”); C.H., 652 N.W.2d at 150 (finding no evidence that the
State required the father “to complete any particular sexual offender
treatment program” or “disapproved of [the father’s] participation in a
treatment program that would not require an admission of guilt”).

   In sum, the trial court did not violate Father’s Fifth Amendment
privilege against self-incrimination. And so the trial court could properly
consider evidence of Parents’ failure to respond to services addressing the
CHINS court’s finding that Father sexually abused R.W.

    The trial court relied on this evidence, and other evidence in the
record, to support its conclusions that there is a reasonable probability
that a primary reason for the children’s removal will not be remedied and
that termination is in the children’s best interests. We now address
whether that evidence was sufficient.


II. The evidence-backed findings support the trial
    court’s conclusion that there is a reasonable
    probability that a primary reason for the
    children’s removal will not be remedied.
   Father argues there is insufficient evidence to clearly and convincingly
show that there is a reasonable probability that the conditions leading to
the children’s removal will not be remedied. He is incorrect.




Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019      Page 8 of 13
   Here, the trial court’s findings show that it engaged in the appropriate
two-step analysis. See In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010). First, it
identified the removal conditions. Id. Specifically, the court found that the
children were removed, in relevant part, because of Father’s alleged long-
term sexual abuse of R.W. Second, the trial court made findings on
whether there is a reasonable probability that this removal condition will
not be remedied. Id. On that point, the court found that despite Father’s
“history of substantiated sexual abuse of his stepdaughter,” he “failed to
complete . . . sex offender specific treatment, and has refused to admit he
has a problem.” Ample evidence in the record supports these findings.

   Turning to that evidence, there is no dispute that the CHINS court
found several of R.W.’s sexual-abuse allegations to be true, including the
following: When R.W. was a young girl, Father told R.W. to come into his
bedroom where he pulled her on top of him. She said that she “didn’t
understand what was happening” and “was frightened.” On another
occasion, R.W. was asleep on the couch and woke up to Father on top of
her, touching his penis to her vagina. A couple of years later, Father told
R.W. to take water to the horses in the barn. Once inside the barn, Father
pulled his pants down and inserted his fingers and then his penis into
R.W.’s vagina while she cried. R.W. also testified at the termination
hearing, explaining that Father molested her “almost all the time I was left
alone with him,” until she was a teenager.

   Similarly, there is no dispute that Father did not complete a sex-
offender treatment program. In fact, at the termination hearing, Father
displayed resentment toward the court-ordered service. When Father was
asked if he agreed that he needed to attend sex-offender treatment, he
responded, “No.” When asked whether he felt that he could benefit from
the treatment, Father responded, “I don’t know how I could.” And most
notably, when Father was asked what he had done to remedy R.W.’s
claims that he molested her, he responded, “Nothing.” By his own words,
Father conceded that he has done nothing to remedy a primary reason for
the children’s removal.

  Ultimately, the court’s findings—that Father repeatedly sexually
abused his stepdaughter and that he failed to complete sex-offender



Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019        Page 9 of 13
treatment—are supported by the evidence. And those findings clearly and
convincingly support the trial court’s conclusion that there is a reasonable
probability that a primary reason for the children’s removal—R.W.’s
sexual abuse allegations against Father—will not be remedied.

  We now address whether sufficient evidence supports the trial court’s
conclusion that termination is in the children’s best interests.


III. The evidence-backed findings support the trial
     court’s conclusion that termination is in the
     children’s best interests.
    Parents each argue that there is insufficient evidence to clearly and
convincingly show that termination is in the best interests of the children.
Specifically, Father alleges that terminating all parental rights based on a
“sole allegation” of sexual abuse is not in the children’s best interests. And
Mother maintains that she completed all services offered to her and her
continued support of Father is likewise not sufficient to show termination
is in the children’s best interests. We disagree. Parents’ arguments are a
request for us to reweigh the evidence and substitute our judgment for
that of the trial court, which we will not do. Instead, looking at the
evidence favorable to the trial court’s ruling, we find ample evidence
supporting the court’s findings, which in turn support its best-interests
conclusion.

   Deciding whether termination is in children’s best interests is
“[p]erhaps the most difficult determination” the trial court must make.
E.M., 4 N.E.3d at 647. To make this decision, trial courts must look at the
totality of the evidence and, in doing so, subordinate the parents’ interests
to those of the children. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App.
2013), trans. denied. Central among these interests is children’s need for
permanency. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Indeed,
“children cannot wait indefinitely for their parents to work toward
preservation or reunification.” E.M., 4 N.E.3d at 648.

   The trial court here echoed the children’s need for permanency, noting
that Parents have had plenty of time “to accomplish the steps necessary to


Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019      Page 10 of 13
have the children returned to their care.” Those “steps” included Parents’
addressing R.W.’s allegations of sexual abuse against Father—several of
which the CHINS court found to be true. Yet, Parents failed to address the
sexual abuse, and the court made many findings on this failure. It
referenced Father not completing a sex-offender treatment program;
Father not believing that he needed treatment or that he would benefit
from it; Mother dismissing R.W.’s claims and refusing to acknowledge the
sexual abuse; Mother not believing Father posed any potential danger to
her other children; and testimony from others showing concern for the
children’s safety if they were to return without a safety plan in place and
with Father not having completed treatment. Evidence in the record
supports each finding.

   The evidence supporting the court’s findings on Father is well-
documented: he did not complete a court-ordered sex-offender treatment
program; and he testified that he does not need treatment and does not
believe he could benefit from it.

  The evidence similarly supports the trial court’s findings on Mother.
Mother testified at the termination hearing that R.W. never mentioned
anything to her at the time of Father’s alleged sexual abuse. But R.W. later
confirmed that she twice told Mother about the abuse, including once
after the first time it happened. Mother has also twice listened to her
daughter provide specific, detailed testimony of Father’s sexual abuse.
And R.W. recalled a more recent conversation with Mother, which ended
with Mother telling R.W. to “basically, forgive and forget—just get over
what happened.” Yet, Mother testified at the termination hearing that she
has never believed R.W. and does not believe Father poses any danger to
the children. Mother is free to believe Father, but the trial court—
responsible for resolving conflicting testimony—believed R.W. See Bester
v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 149 (Ind. 2005).

   Finally, the evidence supports the trial court’s findings on a concern for
the children’s well-being if returned home. Specifically, the court heard
testimony from four witnesses who shared a concern for the well-being of
the children should they return home without a safety plan in place and
without Father having completed treatment.



Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019       Page 11 of 13
   A psychologist testified that, when one child is sexually abused within
a home, there is a similar risk to the other children in that home. The GAL
shared her trepidation on returning the children: “[W]e have no safety
plan in place, we have no plan where [Mother] has talked to her
individual therapist or anyone that she worked with about what she’s
gonna do to be a protective factor for her own children.” R.W. similarly
voiced her concern that her siblings wouldn’t “get the proper care that
they need,” if they were to return home and Father hadn’t changed. And a
DCS caseworker testified that she feared for the children’s safety if they
were returned to the home without Father completing treatment.

   Though we acknowledge that Mother and Father completed most of
the required services, “simply going through the motions of receiving
services alone is not sufficient if the services do not result in the needed
change,” In re J.S., 906 N.E.2d 226, 234 (Ind. Ct. App. 2009). Here, Parents
have not made the needed change to address the CHINS court’s finding
that Father sexually abused R.W. or to protect the other children from
future abuse. As the GAL observed, the children are “no closer to being
reunified” than when they were removed “twenty months ago.”

   In sum, the totality of the evidence above supports the trial court’s
findings, which in turn support the court’s best-interests conclusion.

Conclusion
  The trial court did not violate Father’s Fifth Amendment privilege
against self-incrimination, and the court’s decision to terminate Parents’
parental rights is not clearly erroneous. We thus affirm.


David, Massa, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019     Page 12 of 13
ATTORNEY FOR APPELLANT M.H.
Yvonne M. Spillers
Fort Wayne, Indiana

ATTORNEY FOR APPELLANT R.H.
Mark Small
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Stephen R. Creason
Chief Counsel

Katherine A. Cornelius
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-JT-323 | October 31, 2019   Page 13 of 13
