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In re Parent-Child Relationship of Ma.H.

Court of Appeals of Indiana

February 18, 2019

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,
v.
The Indiana Department of Child Services, Appellee-Petitioner

          Appeal 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 Wayne, Indiana

          ATTORNEY FOR APPELLANT (Mother) Mark Small Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE

         [¶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.

         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 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 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.
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 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.

         [¶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 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 ...

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