In re: O.B.
CourtHawaii Intermediate Court of Appeals
Date FiledNovember 13, 2026
DocketCAAP-25-0000496
StatusPublished
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Full Opinion
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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-NOV-2026
08:12 AM
Dkt. 124 SO
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CAAP-XX-XXXXXXX
IN THE INTEREST OF O.B.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 24-00043)
CAAP-XX-XXXXXXX
IN THE INTEREST OF N.B., T.B., C.B., A.B. and K.B.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 24-00012)
SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, McCullen and Gluck, JJ.)
In this consolidated termination of parental rights
(TPR) appeal, Father-Appellant/Cross Appellee (Father) appeals
and Mother-Appellee/Cross Appellant (Mother) cross appeals
(Father and Mother collectively, Parents) from the June 30, 2025
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"Order Terminating Parental Rights" (TPR Order) entered by the
Family Court of the First Circuit (Family Court).1 The subject
six children in both cases are N.B., T.B., C.B., A.B., K.B. and
O.B. (collectively, Children), who range in age from two to
seventeen. O.B. was born after Mother was arrested and
incarcerated pending trial in a separate criminal case (Criminal
Case). In the Criminal Case, Father, Mother, and non-party
Maternal Grandmother (Grandmother) were collectively charged
with two counts of second-degree murder and seventeen other
counts for allegedly abusing A.B. and causing the death of child
G.B. by abuse, medical neglect, and malnutrition. N.B., T.B.,
C.B., K.B., and O.B. are Parents' biological children. Parents
were the legal guardians of G.B. and the adoptive parents of
A.B.
Parents raise the following three points of error:
(1) Father contends there was insufficient evidence for the
Family Court to conclude that he was not presently, or in the
reasonably foreseeable future, willing and able to provide the
Children a safe family home, even with the assistance of a
service plan, and that the permanent plans were in the
Children's best interests; (2) Mother contends she was deprived
of her parental rights without due process of law because
Petitioner-Appellee/Cross Appellee Department of Human Services
(DHS) failed to provide her a reasonable opportunity for
reunification services while she was incarcerated, and (3)
Mother contends the service plans violated her constitutional
rights to free speech and against self-incrimination.
1 The Honorable Jessi L.K. Hall presided. The Family Court entered
its "Findings of Fact and Conclusions of Law" (FOFs/COLs) on August 19, 2025.
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Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve
Parents' contentions as follows, and affirm.
On January 25, 2024, DHS filed a Petition for
Temporary Foster Custody of N.B., T.B., C.B., A.B., and K.B.
(collectively, Older Children), creating FC-S No. 24-00012. DHS
filed the petition after learning that ten-year-old G.B. died
while in Parents' custody, had severe injuries that were not
treated, and her condition was consistent with extreme
malnutrition and chronic injuries to the skin; and that four-
year-old A.B. was emaciated, "has scars on his feet and hands,
wobbles as he walks, does not talk, is not potty trained, and is
not in a special education preschool." DHS alleged the threat
of abuse or neglect is severe and suggests "impending danger" to
the Children.
On February 14, 2024, Parents and Grandmother were
indicted in the Criminal Case. The same day, the circuit court
entered No-Contact Orders "as a condition of bail and/or
release," that "the Defendant[s] shall not contact" the Older
Children. Father was taken into custody on February 15, 2024,
Mother and Grandmother were taken into custody on February 21,
2024, and the circuit court ordered Parents and Grandmother to
be held without bail "with conditions as set forth in the No-
Contact Order." It appears Parents and Grandmother are still
incarcerated, awaiting trial in the Criminal Case.
In early 2024, while incarcerated, Mother gave birth
to O.B. On March 20, 2024, DHS filed a Petition for Temporary
Foster Custody of O.B., creating FC-S No. 24-00043. On March
22, 2024, the Family Court held a contested adjudication trial
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in both Child Protective Act (CPA) cases. Parents represented
that their response to all questions would be to assert their
Fifth Amendment right against self-incrimination under the U.S.
Constitution. The Family Court adjudicated both petitions,
asserted jurisdiction over the Children, and determined the
Children's date of entry into foster care was March 22, 2024.
Based on orders entered in the Criminal Case, the
Family Court ordered no contact between the Children and
Parents. The Older Children participated in psychological
examinations in February and March, 2024. All were diagnosed
with some form of trauma or disorder. DHS's Family Service
Plans required Parents to participate in psychological
evaluations, individual therapy, Comprehensive Counseling and
Support Services (CCSS) parenting education, CCSS outreach
parenting services, and anger management. DHS provided Parents
individual therapy and anger management through CCSS, which was
available within the corrections system. Parents also
participated in parenting education and outreach parenting
services. Parents completed the CCSS parenting education
component. Parents were permitted to have supervised visitation
with O.B. The correctional facilities did not permit the DHS-
referred service provider to conduct psychological evaluations
in the correctional facilities.
On February 28, 2025, DHS filed Motions to Terminate
Parental Rights in each case. On June 26, 2025, the Family
Court held a joint trial on the motions. Parents both
stipulated that if they were called to testify, their response
to any question would be that they invoke their respective Fifth
Amendment rights. Parents did not testify.
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The Family Court granted the motions to terminate
parental rights, finding inter alia, that Parents' trial in the
Criminal Case was (at the time) set for April 2026; there was no
clear date when Parents would be released from incarceration;
and even if they were released, they would not be able to
complete all their services and process to be reunified with the
Children prior to the two-year anniversary of their placement in
foster custody. See FOFs 84-86, 106. The Family Court found
that issues that necessitated foster custody still exist, and
that Parents have not expressed remorse or responsibility for
"the alleged harm" to the Children, in particular "the alleged
harm" to G.B. that "allegedly resulted in [G.B.'s] death" and
"the alleged serious harm and neglect" to A.B. FOF 107. The
Family Court found that Parents refused to discuss past harms,
they did not have access to all required services due to their
incarceration, and they "have not gained any insight regarding
their role in the alleged harm" to the Children and "how the
alleged harm affects [the] [C]hildren's emotional well-being."
Id. The Family Court explained that "[t]he basis for granting
the Motion to Terminate Parental Rights is . . . the fact that
the [C]hildren do not have an available legal caretaker and
[P]arents have been unable to fully participate in services and
demonstrate that they would be able to provide a safe family
home either now or in the foreseeable future." COL 23. This
consolidated appeal followed.
Generally, the family court possesses wide discretion
in making its decisions and those decision[s] will not be
set aside unless there is a manifest abuse of discretion.
Thus, we will not disturb the family court's decisions on
appeal unless the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant and its decision clearly exceeded the
bounds of reason.
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In re AA, 150 Hawai‘i 270, 283, 500 P.3d 455, 468 (2021)
(citation omitted).
Under the CPA, a family court may grant a motion to
terminate parental rights if the following HRS § 587A-33(a)
(2018) elements are met by clear and convincing evidence: (1)
the parent "is not presently willing and able" to provide the
child "with a safe family home, even with the assistance of a
service plan"; (2) "[i]t is not reasonably foreseeable" that the
parent "will become willing and able to provide the child with a
safe family home, even with the assistance of a service plan,
within a reasonable period of time," defined as not exceeding
two years from the child's date of entry into foster care; and
(3) "[t]he proposed permanent plan is in the best interests of
the child."
A family court's determinations under HRS § 587A-33(a)
with respect to (1) whether a parent is willing and able to
provide a safe family home for the child and (2) whether it is
reasonably foreseeable that a parent will become willing and
able to provide a safe family home within a reasonable period of
time, "present mixed questions of law and fact" that are
"depend[e]nt upon the facts and circumstances of each case" and
are reviewed for clear error. In re J.M., 150 Hawaiʻi 125, 137,
497 P.3d 140, 152 (App. 2021) (citation omitted). A family
court "is given much leeway in its examination of the reports
concerning a child's care, custody, and welfare, and its
conclusions in this regard, if supported by the record and not
clearly erroneous, must stand on appeal." Id.
(1) Father argues that he made "'significant
progress'" in the services he was able to participate in while
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incarcerated. Father contends it is "illogical" for DHS and the
Family Court to argue he lacked "insight" into the harms that
occurred while the Children were in his care. Father argues DHS
and the Family Court recognized that Father could not
acknowledge the harms without implicating himself in the
Criminal Case, pointing to DHS's testimony that it "was aware of
[Father]'s criminal attorney's instructions to not disclose any
information or admission as the criminal case is still
pending[,]" and the Family Court's similar statement that Father
could not "acknowledge [the] harm [that] occurred … because the
circumstances [he is] in with the criminal case[.]" Father
further argues that "not [being] allowed to make an
acknowledgment of harm due to his pending criminal charge" is a
per se forfeiture of his parental rights; that the Family Court
misread the No-Contact Order, which only prohibited contact with
the Children as a condition of bail or release; that Father was
denied an opportunity to demonstrate insight into his safety
issues without visitations with the Children; and that DHS's
trial witnesses lacked credibility.
We decline to address the credibility arguments, as
"[a]n appellate court will not pass upon issues dependent upon
credibility of witnesses and the weight of the evidence; this is
the province of the trial judge." Amfac, Inc. v. Waikiki
Beachcomber Inv. Co., 74 Haw. 85, 117, 839 P.2d 10, 28 (1992)
(citation omitted).
Father's argument that the No-Contact Orders were
merely a condition of bail or release lacks merit. The circuit
court in the Criminal Case ordered that Parents and Grandmother
were to be held without bail "with conditions as set forth in
the No-Contact Order." The Family Court later allowed
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visitations only as to O.B., who was born after entry of the No-
Contact Order.
Even assuming Father had made "significant progress"
with the services mandated by the Family Service Plan, this does
not establish that Father could provide a "safe family home" to
the Children within two years of their placement in foster
custody. "The two-year time limit [in HRS § 587A-33(a)(2)] is
the maximum a parent is allowed within which to demonstrate that
the parent can provide a safe home, not the minimum." In re
G.H., Nos. 29187, 29188, 2009 WL 1426786, at *2 (Haw. App. May
22, 2009) (SDO); see also In re Doe, 100 Hawai‘i 335, 344 n.15,
60 P.3d 285, 294 n.15 (2002) (noting that it may have been
reasonable for DHS to engage in only three months of
reunification efforts with a mother due to her "continued
failure to appear before the court at any of the previously
scheduled hearings and her express unwillingness to participate
in any service programs").
The Family Court determined Father would not be able
to demonstrate he can provide a safe family home due to his
incarceration. In In re Doe, 100 Hawai‘i 335, 60 P.3d 285, the
family court terminated an incarcerated father's parental rights
under nearly identical circumstances. The Doe court recognized
that "involuntary confinement, a criminal charge, or conviction
for a criminal offense does not mandate a per se forfeiture of a
parent's rights to a child"; "[h]owever, incarceration may be
considered along with other factors and circumstances impacting
the ability of the parent to remedy the conditions of abuse and
neglect." Id. at 345, 60 P.3d at 295 (citation modified). It
also noted, "[w]hile there is no dispute that DHS had an
obligation to make every reasonable opportunity to reunite"
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parents with their children, "it is not reasonable to expect
[the DHS] to provide services beyond what was available within
the corrections system." Id. The Doe court also held that "the
completion of a service plan is an empty pursuit until the
parent has been released and is capable of raising a child
again." Id. "At that point, the parent would be able to
participate in a service plan with DHS's assistance." Id. The
Doe court affirmed the trial court's termination of the father's
parental rights after it "determined that [the father] would not
be released within the foreseeable future," and therefore, would
not be able to demonstrate that he could provide a safe family
home within the statutory deadline. Id. at 345–46, 60 P.3d at
295–96.
Here, Father is being held in jail without bail
pending trial in the Criminal Case. At the time the TPR Order
was entered, trial in the Criminal Case was set for April 2026,
which is more than two years after the date of the Children's
entry into foster care. We conclude the Family Court did not
clearly err in its determination under HRS § 587-33(a). See
J.M., 150 Hawai‘i at 137, 497 P.3d at 152.
(2) Mother contends she was denied due process of law
because the Family Court "marched lockstep through periodic
review hearings and trial as if" her rights and the State's
corresponding obligations "evaporate[d]" due to her
incarceration. Mother asserts that DHS is obligated to craft a
service plan that specifies the "steps necessary to facilitate"
a child's return to a safe family home, including the "treatment
and services" to "be provided." Mother claims the guardian ad
litem (GAL) reported that Mother had been placed on a "waitlist"
for some services, and DHS had no provider who could offer
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certain services at the correctional facility, including a
psychological exam. Mother argues the Family Court improperly
assumed that she could not demonstrate insight or acknowledge
harm, and that she was denied an opportunity to do so because
DHS failed to provide the necessary services.
Parents have a substantive liberty interest in the
care, custody, and control of their children that is protected
by the due process clause of Article I, Section 5 of the Hawai‘i
Constitution. In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458
(2002). "[P]rocedural due process of law requires notice and an
opportunity to be heard at a meaningful time and in a meaningful
manner before governmental deprivation of a significant liberty
interest." State v. Bani, 97 Hawai‘i 285, 293, 36 P.3d 1255,
1263 (2001) (citations omitted). "DHS is under an obligation to
provide a reasonable opportunity to parents through a service
plan to reunify the family" and "to make reasonable efforts to
reunite parent and child." In re Doe, 100 Hawai‘i at 343, 60
P.3d at 293.
The record does not reflect that DHS disregarded its
obligation to provide Mother services to address her ability to
provide a safe family home to the Children. In unchallenged FOF
72, the Family Court found that DHS provided all services that
were available within the correctional facilities. Even if DHS
could have made additional efforts to find a psychologist to
enter the correctional facilities, "the completion of a service
plan is an empty pursuit until the parent has been released and
is capable of raising a child again." Id. at 345, 60 P.3d at
295. Regardless of a parent's participation in a service plan,
the parent still needs to demonstrate he or she can provide a
safe family home within the statutory deadline of two years. If
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the court determines that an imprisoned parent "would not be
released within the foreseeable future," it may conclude that
the parent is unable to demonstrate he or she can provide a safe
family home within the statutory limit. Id. at 345–46, 60 P.3d
at 295–96. This was the crux of the Family Court's decision to
terminate parental rights. Although Mother claims the charges
against her could be dropped prior to trial, this argument lacks
support in the record and is speculative.
(3) Mother contends that DHS required her to
demonstrate "insight" into her alleged abuse and neglect for her
to be considered to have completed the service plans, and that
the Family Court similarly found that unless she "acknowledges"
the Children suffered harm under her care, she could not
demonstrate she could provide a safe family home. Mother claims
it thus appears she cannot succeed in this CPA proceeding unless
she admits she "did the acts of which [she is] accused[,]" and
such a requirement violates her constitutional rights to free
speech and against self-incrimination. Mother argues that DHS's
requirement that she demonstrate insight or acknowledgment
requires her to speak certain words, in violation of her First
Amendment right.
Though Mother failed to preserve these constitutional
arguments, we address them under plain error review. See In re
T.J., No. SCWC-XX-XXXXXXX, 2026 WL 3060464, at *5 (Haw. Oct. 13,
2026) (Opinion).
Regarding Mother's First Amendment challenge, assuming
arguendo that being required to demonstrate insight and
acknowledge harm in therapy is a restriction on free speech, the
requirement is narrowly tailored to serve a compelling
government interest. The safety of children in child custody
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cases is a compelling government interest. Id. at *10 ("This
court has long recognized that the 'paramount consideration' in
child custody cases is the welfare of the child." (citation
omitted)); In re I.W., 158 Hawai‘i 244, 251, 591 P.3d 498, 505
(2026) ("The State has a compelling interest in child
welfare."). DHS witnesses testified that demonstrating insight
into the harms Parents caused is necessary to "demonstrate that
they have made a change" and can provide a safe home. The
requirement is also narrowly tailored, as nothing in the record
indicates Mother must speak certain words. Rather, Mother need
only meaningfully engage in therapy to demonstrate that she can
provide a safe home. Here, the Family Court found that "Parents
refused to discuss the alleged past harm or are prohibited from
discussing the alleged harm due to the ongoing criminal case[,]"
and that "Parents have not gained any insight regarding their
role in the alleged harm to their children and how the alleged
harm affects their children's emotional well-being." FOF 107.
We conclude Mother's First Amendment challenge lacks merit.
As for Mother's Fifth Amendment challenge, the Hawaiʻi
Supreme Court's recent decision of In re T.J. is relevant.
There, the family court adjudicated petitions for foster custody
of the children due to allegations of, inter alia, sexual abuse
by the father. The family court ordered a service plan
requiring that the father "acknowledge and take responsibility
for the sexual abuse to his victims." In re T.J., 2026 WL
3060464, at *1. The father's psychologist "testified that [the
father] must admit to sexually abusing the children to receive a
clinical discharge as part of the Service Plan." Id. at *9.
The supreme court concluded that "[i]n effect, the Service Plan
requires [the father] to admit to sexual abuse" and "is
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unconstitutional to the extent it requires [the father]'s
admission of sexual abuse." Id. at *1, *9. It explained that
"[t]he State may mandate therapy, but it may not go as far as
requiring [the father] to incriminate himself[.]" Id. It held
"that the Fifth Amendment does not protect parents from the
consequences of failing to undergo meaningful therapy,
particularly where the refusal to admit to past abuse hinders
engagement." Id. at *10. It noted that "parents can begin to
understand and reform their abusive behaviors by acknowledging
their past abuse," and that "acknowledgment is an important step
in the rehabilitation of the family" and, depending on the
circumstances, a necessary factor in determining whether a
parent engaged in meaningful therapy. Id. at *10-11 (citation
omitted). By considering "whether a parent engaged in
meaningful therapy, which may hinge in part on the parent's
failure to confront their past abuse," a family court "protects
a parent's self-incrimination rights but also ensures that we
uphold the 'paramount' purpose of protecting children in
Hawai‘i." Id. at *11. Thus, though the State "may not compel a
parent to admit to past sexual abuse, it may nonetheless require
them to undergo sexual abuse treatment and consider their
failure to admit as an indication that the parent did not
effectively engage in treatment, which could impact the
disposition of their parental rights," along with other factors.
Id.
Here, as DHS points out, the service plans did not
require Parents to admit to the alleged acts of abuse. The
service plans merely required Parents to participate in therapy,
which included demonstrating insight and acknowledgment of the
harms the Children experienced while in the Parents' care, "to
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demonstrate that they have made a change." This therapy was
just one aspect of determining whether Parents could (or could
not) provide a safe home for the Children. The Family Court
concluded that Parents' refusal to discuss the past, in any
capacity, prevented them from gaining any insight regarding the
past harm to the Children and that Parents "have not
meaningfully engaged in therapy." FOF 107. On this record,
Mother fails to show a violation of her Fifth Amendment rights.
See In re T.J., 2026 WL 3060464.
For the foregoing reasons, the Family Court of the
First Circuit's June 30, 2025 "Order Terminating Parental
Rights" is affirmed.
DATED: Honolulu, Hawai‘i, November 13, 2026.
On the briefs:
/s/ Karen T. Nakasone
Tae Chin Kim,
Chief Judge
for T.B., Father/
Appellant/Cross-Appellee in
/s/ Sonja M.P. McCullen
CAAP-25-496 and CAAP-25-497.
Associate Judge
Leigh Woodruff,
/s/ Daniel M. Gluck
Crystal M. Asano,
Associate Judge
for B.B., Mother/
Appellee/Cross-Appellant in
CAAP-25-496 and CAAP-25-497.
Jonathan M. Fujiyama,
Deputy Attorney General
for Petitioner-Appellee
Department of Human Services
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