May, J.
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.
…
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. ..
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.)
….
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
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…
….
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
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. 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.
….
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 the circumstances, the violation of Father’s Fifth Amendment right unfairly influenced his participation and completion of other required services. [Footnote omitted.] 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.
….
Conclusion
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.
Reversed and remanded.
Baker, J., concurs.
Robb, J. dissents with separate opinion.
Robb, Judge, dissenting.
I respectfully dissent.
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 ¶¶ 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.
….