Father’s assertion of Fifth Amendment rights splits COA

Marilyn Odendahl for www.theindianalawyer.com

Even though the Indiana Court of Appeals had previously affirmed that the youngsters in this case were children in need of services, in part because of allegations of a father’s sexual abuse, it has reversed the termination of parental rights because the requirement that the father participate in a sex offender treatment program violated his Fifth Amendment right against self-incrimination.

The Indiana Department of Child Services found the seven minor children of M.H. (father) and R.H. (mother) were children in need of services after M.H.’s stepdaughter, R.W., accused him of molesting her. The Wells Circuit Court adjudicated the children as CHINS, and the Court of Appeals upheld the finding in May 2017 in In the Matter of La.H., Le.H., Lo.H., Ma.H., S.W., W.H., and Me.H. and M.H. (father) v. The Indiana Department of Child Services, 90A02-1609-JC-2135.

However, the focus remained on reuniting the family, and the trial court issued an order that required the father to complete a sex offender treatment course. M.H. refused to participate in the treatment program because he would have to take a polygraph and admit the truth of R.W.’s allegations, which, he argued, ran counter to his Fifth Amendment right to remain silent.

A split Court of Appeals agreed in 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) v. The Indiana Department of Child Services, 18A-JT-1296.

On appeal, DCS contended the law-of-the-case doctrine applies and can be used to make M.H. admit to sexual abuse since the appellate court affirmed that conclusion in the previous case. But the majority held the law-of-the-case doctrine cannot prohibit the father from invoking the Fifth Amendment.

“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,” Judge Melissa May wrote for the majority joined by Judge John Baker. “…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.”

The majority, thus, remanded the case for reinstatement of the CHINS proceedings, a re-examination of the requirements for reunification and the entry of a revised dispositional order.

Judge Margret Robb, who wrote the appellate court’s 2017 opinion affirming the CHINS finding, dissented.

“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,” Robb wrote. “It would encourage refusal to participate in treatment.”

In addition, Robb argued that while the father can invoke his Fifth Amendment right, that does not prevent the consequences from asserting that right. Here, it was the possibility of termination of M.H.’s parental rights for failing to participate in meaningful therapy.

“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 this case is that which we often encounter: Father says he did nothing wrong and R.W. says otherwise,” Robb wrote. “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.”