Rush, C.J.
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
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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 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…
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 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…
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.
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III. The evidence-backed findings support the trial court’s conclusion that termination is in the children’s best interests.
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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.