In the Matter of the Parent-Child Relationship of Ma.H., Le.H., 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,
The Indiana Department of Child Services, Appellee-Petitioner
from the Wells Circuit Court The Honorable Kenton W.
Kiracofe, Judge Trial Court Cause No. 90C01-1707-JT-22
90C01-1708-JT-29 90C01-1708-JT-30 90C01-1708-JT-31
90C01-1708-JT-32 90C01-1708-JT-34 90C01-1708-JT-35
ATTORNEY FOR APPELLANT (Father) Yvonne M. Spillers Fort
ATTORNEY FOR APPELLANT (Mother) Mark Small Indianapolis,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Katherine A. Cornelius Deputy Attorney General
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.
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.
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.
and Procedural History
Mother has two daughters from a previous marriage: R.W., born
May 19, 1998, who is not subject to these proceedings,
S.W.,  born May 14, 2001.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
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 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 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 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
Matter of La.H., 90A02-1609-JC-2135 (Ind.Ct.App.,
May 31, 2017) (internal citations to the record omitted).
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.
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
(Father's App. Vol. II at 113-14) (nonsequential
lettering in original).
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 stepdaughter [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.
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.
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.
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 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.
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 ...