Justices reject Fifth Amendment appeal of sex offender treatment

The Indiana Supreme Court has found no constitutional violation against a father who refused to participate in a sex offender treatment program that he argued would violate his Fifth Amendment right against self-incrimination.

In In the Matter of Ma.H., Le.H., Lo.H., W.H., La.H., Me.H., and S.W. (Minor Children); M.H. (Father) and R.H. (Mother) v. Indiana Department of Child Services, 19S-JT-323, the Indiana Department of Child Services found the seven minor children of father M.H. and mother R.H. as children in need of services after one of M.H.’s stepdaughters accused him of molesting her.

The children were adjudicated as CHINS, and the Indiana Court of Appeals upheld the Wells Circuit Court’s decision. However, M.H. refused to participate in an ordered sex offender treatment program because he would have to take a polygraph and admit the truth of the allegations, which, he argued, ran counter to his Fifth Amendment right to remain silent.

A divided COA sided with M.H. and reversed the termination of parental rights order, remanding the case for reinstatement of the CHINS proceedings, a re-examination of the requirements for reunification and the entry of a revised dispositional order. Supreme Court justices then granted DCS’s petition to transfer the case in May, hearing oral argument in June.

In a Thursday ruling, the justices concluded that the trial court did not require M.H. to admit to a crime at the risk of losing his parental rights when it ordered him to complete a sex offender treatment course.

“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,” Chief Justice Loretta Rush wrote for the high court.

Justices further concluded that because both parents failed to address the sexual abuse allegations, there was sufficient evidence to support the trial court’s termination decision. Specifically, the high court disagreed with M.H. that termination was not in the children’s best interests.

“The trial court here echoed the children’s need for permanency, noting that Parents have had plenty of time ‘to accomplish the steps necessary have the children returned to their care.’ Those ‘steps’ included Parents’ addressing R.W.’s allegations of sexual abuse against Father — several of which the CHINS court found to be true. Yet, Parents failed to address the sexual abuse, and the court made many findings on this failure,” the high court wrote.

“… Though we acknowledge that Mother and Father completed most of the required services, ‘simply going through the motions of receiving services alone is not sufficient if the services do not result in the needed change.’ Here, Parents have not made the needed change to address the CHINS court’s finding that Father sexually abused R.W. or to protect the other children from future abuse. As the (guardian ad litem) observed, the children are ‘no closer to being reunified’ than when they were removed” 20 months earlier.

It thus affirmed the trial court, finding the termiantion of parental rights was not clearly erroneous.