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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-OCT-2026
12:45 PM
Dkt. 66 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---IN THE INTEREST OF T.J., I.T, A.T.1, A.T.2, and K.T.2,
(CAAP-XX-XXXXXXX; CASE NO. FC-S 23-00105)
---------------------------------------------------------------IN THE INTEREST OF L.T.
(CAAP-XX-XXXXXXX; CASE NO. FC-S 24-00081)
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
OCTOBER 13, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,
AND CIRCUIT JUDGE TO‘OTO‘O, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY DEVENS, C.J.
I. INTRODUCTION
This appeal asks whether the State, in child custody
proceedings, may require a parent to make incriminating
disclosures as part of their rehabilitation therapy. We hold
that it may not, based on a parent’s Hawaiʻi Constitution Article
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I, Section 10 right against self-incrimination. However, we
also hold that if the parent’s silence or denial of abuse
interferes with effective therapy, then the court may consider
that finding to the parent’s detriment without offending the
privilege against self-incrimination.
The underlying case concerns the care and custody of
children, Taylor, Isabelle, Amanda, Avery, Kevin, and Laura. 1
Petitioner/Father-Appellant (Father) is the biological father of
the children except for Taylor. Respondent/Mother (Mother) is
the mother of all the children.
After receiving and investigating reports of sexual abuse
allegations against Father, Respondent/Appellee Department of
Human Services (DHS) filed two petitions for foster custody of
the children. Only the custody of Father’s children, Isabelle,
Amanda, Avery, Kevin, and Laura (collectively, T Children)
remains at issue.
The Family Court of the First Circuit (family court) 2 issued
orders granting the petitions that incorporated and implemented
1 We use pseudonyms to protect the identities of the children and for ease of reference.
2 The Honorable Lesley N. Maloian presided.
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family service plans (collectively, Service Plan 3) recommending
sex abuse treatment services for Father. The Service Plan
requires that, among other things, Father “acknowledge and take
responsibility for the sexual abuse to his victims.” In effect,
the Service Plan requires Father to admit to sexual abuse. The
Intermediate Court of Appeals (ICA) affirmed.
Father subsequently filed an untimely application for writ
of certiorari with this court. We extend our certiorari review
holding in State v. Uchima, 147 Hawaiʻi 64, 464 P.3d 852 (2020),
to parental rights termination proceedings and apply it here to
address the merits of Father’s writ application.
Father argues, for the first time in his writ application,
that the Service Plan violated his right to free speech under
Article I, Section 4 of the Hawaiʻi Constitution and the First
Amendment to the United States Constitution. We noticed
possible plain error and ordered supplemental briefing. We now
invalidate the Service Plan on alternate constitutional grounds:
the Service Plan violates Father’s privilege against self3 The orders underlying this appeal were entered by the family court on September 9, 2024. On October 23, 2025, the family court entered an order modifying the Service Plan (October 23, 2025 Order). We use “Service Plan” to refer to the DHS service plans in effect notwithstanding the October 23, 2025 Order. As the October 23, 2025 Order was entered after Father filed his application for writ of certiorari, we take judicial notice of the October 23, 2025 Order. See Hawaiʻi Rules of Evidence Rule 201(b) (2016).
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incrimination under Article I, Section 10 of the Hawaiʻi
Constitution. 4 Although it is undisputed that the State may
mandate therapy and condition the disposition of parental rights
on Father’s completion of such treatment, it may not expressly
require Father to admit to committing sex abuse in violation of
his Hawaiʻi constitutional right against self-incrimination. But
we also hold that although a court cannot require a parent to
admit criminal misconduct, if the parent’s silence or denial of
abuse interferes with effective therapy, then the court may act
on that finding to the parent’s detriment without offending the
Article I, Section 10 privilege against self-incrimination.
Accordingly, we vacate in part the ICA’s judgment on appeal
and the family court’s September 9, 2024 Orders Concerning Child
Protective Act in FC-S No. 23-00105 and FC-S No. 24-00081 to the
extent Father is required to comply with the Service Plan
condition that he admit to sexual abuse. And we remand to the
family court for further proceedings consistent with this
opinion. The ICA’s judgment on appeal and the family court’s
4 For ease of reference, unless stated otherwise, “Article I, Section 4” rights will refer to the freedom of speech under both the First Amendment to the U.S. Constitution and Article I, Section 4 of the Hawaiʻi Constitution, and “Article I, Section 10” rights will refer to the right against selfincrimination under both the Fifth Amendment to the U.S. Constitution and this provision of the Hawaiʻi Constitution.
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September 9, 2024 Orders Concerning Child Protective Act in FC-S
No. 23-00105 and FC-S No. 24-00081 are otherwise affirmed.
II. BACKGROUND
A. Relevant Family Court Proceedings
On December 7, 2023, after investigating reports of sexual
abuse committed by Father, DHS filed a petition seeking foster
custody of Taylor, Isabelle, Amanda, Avery, and Kevin. After
Laura was born, DHS also filed a petition seeking foster custody
of the newborn.
In conjunction with these petitions, DHS submitted family
service plans recommending sex abuse treatment services for
Father.
Relevant here, the family service plan submitted in Laura’s
case required:
1. [Father] will acknowledge and take responsibility for
the sexual abuse to his victims.
2. [Father] will understand the dynamics of child sexual
abuse and how it impacts the victim/family.
3. [Father] will be able to identify triggers, thinking
errors, understand victim empathy, etc.
4. [Father] will cooperate with the service provider,
keep all scheduled appointments and obtain a clinical
discharge.
(Emphases added.)
The proceedings were consolidated. At trial, a DHS social
worker testified that Father had started sex offender treatment
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but “there was an impasse” because Father would not admit to the
sexual abuse allegations. Father later testified and denied the
allegations. 5
Following trial, on September 9, 2024, the family court
issued “Orders Concerning Child Protective Act” in both cases,
awarding DHS foster custody of T Children and incorporating the
Service Plan and its terms.
B. Relevant Appellate Proceedings
1. ICA’s Memorandum Opinion
Father appealed the family court’s Orders Concerning Child
Protective Act in both cases. The ICA consolidated the appeals
and affirmed the family court. The ICA subsequently issued its
Judgment on Appeal on March 25, 2025.
2. Family Court’s Ex Parte Motion and Appointment of
Counsel
On April 21, 2025, the Senior Family Court Judge of the
First Circuit filed an ex parte motion with the ICA requesting
that the ICA remand the case to the family court to appoint
counsel and grant Father an extension to file an application for
writ of certiorari. The motion explained that Father’s prior
5 There is no evidence in the record that Father was ever criminally prosecuted in conjunction with these sexual abuse allegations.
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appointed counsel “experienced an unexpected personal issue”
rendering him unable to represent Father. The ICA dismissed the
extension request without prejudice, concluding that the family
court was unable to file a motion on behalf of Father, but
remanded the case for appointment of counsel.
On remand, the family court appointed counsel on May 14,
2025, twenty days after the deadline to file a writ application
expired on April 24, 2025. On May 28, 2025, attorney Leigh
Woodruff (current attorney) entered a formal appearance on
behalf of Father. Father’s current attorney subsequently filed
a motion for extension of time to file a writ application on
behalf of Father, which the appellate clerk denied as untimely.
3. Father’s Application for Writ of Certiorari
Father filed an application for writ of certiorari with
this court on July 17, 2025. He acknowledges that his previous
attorney failed to timely file an application. He requests that
this court consider the application on the merits to preserve
his right to counsel in these parental rights termination
proceedings.
On the merits, Father asserts--for the first time in his
application--that the Service Plan incorporated into the family
court’s Orders Concerning Child Protective Act violated his
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right to free speech under our state constitution’s Article I,
Section 4.
We accepted Father’s application on September 15, 2025, and
subsequently ordered supplemental briefing on the following:
1. Whether the Service Plan implicates and infringes on
Father’s right to free speech in violation of the First
Amendment to the United States Constitution and article I,
section 4 of the Hawai‘i Constitution; [and]
2. Whether the Service Plan implicates and infringes on
Father’s right against self-incrimination in violation of
the Fifth Amendment to the United States Constitution and
article I, section 10 of the Hawai‘i Constitution.
Father, DHS, and Respondent Guardian Ad Litem (GAL) timely
filed supplemental briefs.
4. Family Court’s Modification of the Service Plan
After we ordered supplemental briefing, the family court
entered the October 23, 2025 Order modifying the Service Plan.
In a declaration filed with DHS’s supplemental brief, counsel
for DHS stated that in July 2025, “Father, on his own, began sex
offender treatment with [a new therapist].” The October 23,
2025 Order modified the Service Plan (Modified Service Plan) to
add this new therapist as an option to provide sex abuse
treatment for Father, subject to the present appeal. The family
court also ordered: “Given parents’ engagement in sex abuse
treatment: HRS [§] 587A-20 shall be invoked as to both Mother
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and Father which is in the children’s best interest at this
time[.]” 6
III. STANDARDS OF REVIEW
A. Plain Error
We may recognize plain error when the error committed
affects substantial rights. In re N.C., 123 Hawai‘i 184, 193,
231 P.3d 457, 466 (2010) (citations omitted).
B. Constitutional Questions
“We review questions of constitutional law de novo, under
the right/wrong standard.” In Interest of FG, AG, PG, 142
Hawai‘i 497, 503, 421 P.3d 1267, 1273 (2018) (emphasis and
citations omitted).
IV. DISCUSSION
A. Uchima applies to parental rights termination proceedings.
“As a general rule, compliance with the requirement of
timely filing of a notice of appeal is jurisdictional, and we
must dismiss an appeal on our motion if we lack jurisdiction.”
State v. Knight, 80 Hawai‘i 318, 323, 909 P.2d 1133, 1138 (1996)
6 HRS § 587A-20 (2018) provides: “The court may order that testimony or other evidence produced by a party in a proceeding under this chapter shall be inadmissible as evidence in any other state civil or criminal action or proceeding if the court deems such an order to be in the best interests of the child.” HRS § 587A-20.
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(cleaned up). Nevertheless, “we have permitted belated appeals
under certain circumstances, namely, when defense counsel has
inexcusably or ineffectively failed to pursue a defendant’s
appeal from a criminal conviction in the first instance.” Id.
(cleaned up).
In Uchima, for instance, we declined to dismiss a criminal
defendant’s writ application that was filed six days after it
was due. 147 Hawaiʻi at 72-83, 464 P.3d at 860-71. We noted
that “certiorari review is a critical stage of the criminal
proceedings during which a defendant has the constitutional
right to effective assistance of counsel, which includes
counsel’s procedural compliance with the steps required to
timely file an application for a writ of certiorari.” Id. at
69, 464 P.3d at 857. Accordingly, we held that “this court may
decline to dismiss an application for writ of certiorari as
untimely and proceed to review its merits when it is plain from
the record that defense counsel failed to comply with the
procedural requirements for filing the application.” Id. at 82,
464 P.3d at 870 (citation omitted).
We later extended our holding in Uchima to include juvenile
law-violators’ proceedings in In the Interest of GH, 152 Hawaiʻi
8, 518 P.3d 1158 (2022). There, we rendered a merits
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determination despite defense counsel filing a writ application
more than eight months after the ICA filed its judgment on
appeal. Id. at 14-15, 518 P.3d at 1164-65.
We recognize that the present appeal is not criminal in
nature. However, we have held that “parents have a
constitutional right to counsel under article I, section 5 [of
the Hawaiʻi Constitution] in parental termination proceedings[.]”
In re T.M., 131 Hawai‘i 419, 421, 319 P.3d 338, 340 (2014). See
also Interest of P Children, 155 Hawaiʻi 332, 337, 564 P.3d 1131,
1136 (2025) (“The Hawai‘i Constitution’s due process clause,
article I, section 5, confers parents a right to counsel in
Child Protective Act proceedings.” (cleaned up)). We thus
extend Uchima to parental rights termination proceedings. In
such cases, we may decline to dismiss an application for writ of
certiorari as untimely.
Here, Father’s writ application was filed on July 17, 2025,
more than thirty days after the ICA filed its Judgment on Appeal
on March 25, 2025. It is therefore untimely. See Hawaiʻi Rules
of Appellate Procedure (HRAP) Rule 40.1(a) (eff. 2023). Father
explains that he was without counsel after his former attorney
experienced personal issues that made it impossible for him to
represent Father. This was detailed in the Senior Family Court
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Judge’s ex parte motion filed with the ICA. Father’s current
attorney was eventually appointed by the family court on May 14,
2025, and entered an appearance as counsel of record on May 28,
2025. Father further explains that his current attorney was
unable to contact him until the family court provided a
telephone number on June 26, 2025. Father’s current attorney
finally reached Father on June 29, 2025. Meanwhile, around
June 25, 2025, the ICA’s docket in this case became inaccessible
and counsel did not regain access until July 8, 2025. Father
filed his writ application nine days later on July 17, 2025.
The delay in filing was clearly due to exigent
circumstances beyond Father’s control. In light of these
circumstances, the record before us, Father’s constitutional
right to effective counsel in parental rights termination
proceedings, and Father’s fundamental liberty interest in the
care, custody, and control of his children, we consider the
merits of Father’s writ application notwithstanding its
untimeliness. See DJ v. CJ, 147 Hawai‘i 2, 17, 464 P.3d 790, 805
(2020) (“[I]t is axiomatic that a parent’s right to the care,
custody, and control of the parent’s child is a fundamental
liberty interest protected by the United States and Hawai‘i
constitutions and entitled to due process protection.”).
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B. Whether the Service Plan violates Article I, Section 10 and
the Fifth Amendment is appropriate for plain error review.
Father argues for the first time in his certiorari
application that the Service Plan violated his constitutional
right to free speech. Additionally, no party raised whether the
Service Plan violated Father’s constitutional right against
self-incrimination. We first identified that issue in our order
granting DHS’s and the GAL’s motions for supplemental briefing.
As explained below, we hold that the Service Plan violates
Father’s right against self-incrimination under Article I,
Section 10 of the Hawaiʻi Constitution and decline to reach
Father’s free-speech argument. Thus, we must first analyze
whether plain error review is appropriate to assess the selfincrimination issue.
We may recognize plain error when the error committed
affects substantial rights. N.C., 123 Hawaiʻi at 193, 231 P.3d
at 466; HRAP Rule 40.1(d)(1) (eff. 2023) (“The supreme court, at
its option, may notice a plain error not presented.”).
In WW v. DS, 149 Hawai‘i 123, 129-31, 482 P.3d 1084, 1090-92
(2021), we noticed plain error to review a family court’s
actions in facilitating settlement despite the father’s failure
to raise this claim before the ICA. We explained:
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In civil cases, the plain error rule is only invoked when
“justice so requires.” We have taken three factors into
account in deciding whether our discretionary power to
notice plain error ought to be exercised in civil cases:
(1) whether consideration of the issue not raised at trial
requires additional facts; (2) whether its resolution will
affect the integrity of the trial court’s findings of fact;
and (3) whether the issue is of great public import.
Id. at 130, 482 P.3d at 1091 (quoting U.S. Bank Nat’l Ass’n
v. Castro, 131 Hawaiʻi 28, 42, 313 P.3d 717, 731 (2013)).
Plain error review is appropriate here.
First, no additional facts are required, as the
requirements of the sexual abuse treatment program are
undisputed. There was a full evidentiary hearing before the
family court that included testimony about the treatment
program’s requirements. The DHS social worker testified that
the treatment program requires Father to “take responsibility
[for] the abuse” and that clinical discharge from the program
requires Father admit to the sexual abuse. Dr. Francisco Najera
(Dr. Najera), a clinical psychologist and provider for the
treatment program, also testified,
In order to--to receive a clinical discharge, there are
certain tasks, therapeutic tasks, that the participant’s
assigned to complete. Once those tasks are completed, then
a clinical discharge is possible. The first step would be
to--to show up for their services appointments, and the
second step would be to admit.
(Emphasis added.)
Second, the resolution of the self-incrimination issue will
not affect the integrity of the family court’s findings of fact
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as our analysis only addresses the constitutionality of the
Service Plan, which is a question of law reviewable de novo.
See WW, 149 Hawaiʻi at 130-31, 482 P.3d at 1091-92.
Third, the constitutionality of a DHS service plan, which
impacts a parent’s ability to parent their child, is undoubtedly
a matter of great public importance. See In re Doe, 99 Hawaiʻi
522, 533, 57 P.3d 447, 458 (2002) (“The manifest importance of
the right of a parent to raise his or her child has been
analogized to a fundamental liberty interest.” (cleaned up)).
All three factors weigh in favor of plain error review.
Thus, justice requires that we address the self-incrimination
issue. 7
C. Father’s appeal is neither moot nor unripe with respect to
his constitutional right against self-incrimination.
The next threshold issue is whether the self-incrimination
issue is justiciable. For the reasons discussed below, we find
that it is properly before us for review.
1. Father’s appeal is not moot.
DHS argues that the issues in this case are moot because
the Modified Service Plan no longer requires acceptance of
7 In accordance with HRAP Rule 28(b)(4) (eff. 2022), the parties briefed the self-incrimination issue under both the federal and state constitutions in their supplemental briefs filed on December 10, 2025.
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responsibility following the family court’s October 23, 2025
Order. Additionally, the GAL asserts that Father’s selfincrimination challenge is adequately addressed by the family
court’s invocation of HRS § 587A-20 immunity. 8 We respectfully
disagree with both arguments.
As we have held before:
A case is moot if it has lost its character as a present,
live controversy of the kind that must exist if courts are
to avoid advisory opinions on abstract propositions of law.
The rule is one of the prudential rules of judicial selfgovernance founded in concern about the proper--and
properly limited--role of the courts in a democratic
society.
Doe v. Doe, 116 Hawai‘i 323, 326, 172 P.3d 1067, 1070 (2007)
(cleaned up).
First, and contrary to DHS’s argument, the Modified Service
Plan still requires acceptance of responsibility. The Modified
Service Plan contains the same language from the original
Service Plan which requires that “[Father] will acknowledge and
8 Father questions whether the family court retained jurisdiction to modify the Service Plan during the pendency of the appeal. Contrary to Father’s contention, the family court had jurisdiction to make the modifications. See HRS § 587A-35 (2018) (“[T]he court may retain jurisdiction under this chapter until the full term for which any order entered expires or until the child attains nineteen years of age, whichever comes first.”); HRS § 571-54 (2018) (The pendency of an appeal “shall not suspend the order or decree of the [family] court regarding a child or minor, or discharge the child or minor from the custody of the court or of the person, institution, or agency to whose care the child or minor has been committed, unless otherwise ordered by the family court or by the appellate court after an appeal is taken.”).
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take responsibility for the sexual abuse to his victims.”
Although there is a handwritten modification on the plan listing
Father’s new therapist as an option to provide sex abuse
treatment for Father, there is no indication that Father’s
obligation to acknowledge his sexual abuse has been annulled.
Thus, the family court’s modification does not moot the selfincrimination issue.
Second, as to the GAL’s argument, the Modified Service
Plan’s application of HRS § 587A-20 does not immunize Father
such that his compliance would no longer threaten
criminalization.
“Freedom of choice, to speak or not to speak, is article I,
section 10’s essence.” State v. Tolentino, 158 Hawai‘i 321, 334,
592 P.3d 209, 222 (2026).
“[T]he privilege against self[-]incrimination extends not
only to answers that would in themselves support a conviction,
but to those that would furnish a link in the chain of evidence
needed to prosecute.” State v. Kupihea, 80 Hawai‘i 307, 313, 909
P.2d 1122, 1128 (1996) (internal quotation marks omitted)
(citing Territory of Hawaii v. Lanier, 40 Haw. 65, 72 (Haw.
Terr. 1953)).
HRS § 350-1.1(a)(1) provides, in relevant part:
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(a) Notwithstanding any other state law concerning
confidentiality to the contrary, the following persons who,
in their professional or official capacity, have reason to
believe that child abuse or neglect has occurred or that
there exists a substantial risk that child abuse or neglect
may occur in the reasonably foreseeable future, shall
immediately report the matter orally to the department [of
human services] or to the police department:
(1) Any licensed or registered professional of the
healing arts or any health-related occupation who
examines, attends, treats, or provides other
professional or specialized services, including but
not limited to physicians, including physicians in
training, psychologists, dentists, nurses,
osteopathic physicians and surgeons, optometrists,
chiropractors, podiatrists, pharmacists, and other
health-related professionals[.]
HRS § 350-1.1(a)(1) (Supp. 2023) (emphasis added).
In other words, if Father were to admit to sexual abuse to
his therapist as required by the Modified Service Plan, the
therapist would be required by law to report the matter
“immediately” to law enforcement. Such an admission could form
the basis for criminal liability. 9 See HRS § 707-732(1)(b)
(Supp. 2021) (“A person commits the offense of sexual assault in
the third degree if the person . . . [k]nowingly subjects to
sexual contact a person who is less than fourteen years old or
causes such a person to have sexual contact with the actor[.]”).
The family court’s invocation of HRS § 587A-20 does not
negate or nullify this reporting requirement. Instead, it
9 This would be true under the Service Plan as well.
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merely provides that any evidence and testimony produced during
Father’s treatment (including his hypothetical admission) would
be inadmissible in subsequent criminal proceedings. See In re K
Child., No. CAAP-XX-XXXXXXX, 2013 WL 6244722, at *4-7 (Haw. App.
Nov. 29, 2013) (SDO) (explaining that the family court’s
application of HRS § 587A-20 “meant that any evidence resulting
from the [court-ordered psychosexual] evaluation would not be
admissible in [f]ather’s criminal prosecution”). The therapist
would still be required to report the abuse to law enforcement,
and law enforcement would then be able to independently
investigate and gather evidence to prosecute Father. Thus, even
under the Modified Service Plan, an admission from Father would
“furnish a link in the chain of evidence needed to prosecute.”
Kupihea, 80 Hawai‘i at 313, 909 P.2d at 1128.
In sum, the family court’s application of HRS § 587A-20
does not sufficiently immunize Father such that the Modified
Service Plan does not implicate his self-incrimination rights.
Accordingly, the issue is not moot.
2. Father’s appeal is ripe.
DHS asserts that the self-incrimination issue is not ripe.
It argues that, under HRS § 587A-7, satisfaction of the Service
Plan is just one of the factors family courts consider when
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determining whether a child’s family is willing and able to
provide the child with a safe family home. 10 That is, “[i]t is
not clear at this point in time . . . that Father would actually
lose his parental rights if he fails to admit [to sexual abuse],
even under the original [S]ervice [P]lan.” DHS further asserts
that the record neither indicates that Father has invoked such
privilege nor suggests that Father would still invoke his right
against self-incrimination in light of the October 23, 2025
Order.
Although Hawaiʻi courts are not bound by a “case or
controversy” requirement,
we nonetheless recognize that the prudential rules of
judicial self-governance founded in concern about the
proper--and properly limited--role of courts in a
democratic society are always of relevant concern. For
even in the absence of constitutional restrictions, courts
must still carefully weigh the wisdom, efficacy, and
timeliness of an exercise of their power before acting.
10 HRS § 587A-7 (2015) provides, in relevant part:
(a) The following factors shall be fully considered when
determining whether a child’s family is willing and able to
provide the child with a safe family home:
(8) Whether any alleged perpetrator has completed
services in relation to any [history of abusive or
assaultive conduct or history of substance abuse],
and acknowledged and accepted responsibility for the
harm to the child;
HRS § 587A-7(a)(8).
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Ripeness is peculiarly a question of timing, and the
relevant prudential rule deals with problems of prematurity
and abstractness that may prevent adjudication in all but
the exceptional case. A ruling that an issue is not ripe
ordinarily indicates the court has concluded a later
decision may be more apt or that the matter is not yet
appropriate for adjudication.
State v. Fields, 67 Haw. 268, 274–75, 686 P.2d 1379, 1385 (1984)
(cleaned up).
For the reasons discussed below, we do not find that “a
later decision may be more apt or that the matter is not yet
appropriate for adjudication.” Id. at 275, 686 P.2d at 1385.
The issue is ripe.
D. The Service Plan violates Father’s constitutional privilege
against self-incrimination.
1. The State may not require Father to admit to sexual
abuse in violation of his right against selfincrimination as part of the Service Plan.
“The Fifth Amendment to the U.S. Constitution and
Article I, Section 10 of the Hawai‘i Constitution guarantee the
right against self-incrimination.” State v. James, 153 Hawai‘i
503, 511, 541 P.3d 1266, 1274 (2024) (cleaned up). “[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[.]” Lefkowitz v. Cunningham, 431 U.S. 801, 805
(1977). The Fifth Amendment “‘privileges [a person] not to
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answer official questions put to [them] in any other proceeding,
civil or criminal, formal or informal, where the answers might
incriminate [them] in future criminal proceedings.’” Minnesota
v. Murphy, 465 U.S. 420, 426 (1984) (citing Lefkowitz v. Turley,
414 U.S. 70, 77 (1973)).
The privilege against self-incrimination “is not limited to
an accused testifying at [their] own criminal trial, but applies
to testimony of any witness at any proceeding, where the
testimony might tend to show that the witness had committed a
crime.” Kupihea, 80 Hawai‘i at 313, 909 P.2d at 1128. Indeed,
while the privilege is limited to criminal matters, “it is as
broad as the mischief against which it seeks to guard.” Id.
In this respect, Matter of Welfare of J.W., 415 N.W.2d 879
(Minn. 1987), which involved a court-ordered treatment plan
requiring parents to make incriminating disclosures, is
informative. The trial court there found that either or both
parents were responsible for the death of their nephew during a
trial held to determine if the two children of the parents were
“dependent and neglected[.]” Id. at 880-81. The parents’
children were placed in foster care due to a high risk of
physical abuse in the family home. Id. at 881.
The trial court entered an order adopting the county22
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recommended family rehabilitation program, which included
psychological evaluations requiring “the explanation of the
death of [the nephew], consistent with the medical findings.”
Id. Before the trial court, the state’s attorney indicated that
if the parents refused to undergo the psychological evaluations
as ordered, the state would file a petition for parental
termination. Id.
On appeal, the Minnesota Supreme Court found the treatment
plan unconstitutional. Id. at 883. As an initial matter, the
court held that the parents’ Fifth Amendment challenge was not
premature, rejecting the state’s ripeness argument. Id. at 882-83. The court reasoned that even though a termination petition
had not been filed, the state’s “threat” of termination was
“genuine, direct, and immediate,” and such a penalty was a
“potent sanction.” Id. at 882. The court also noted that
“termination of parental rights would not be automatic if the
parents refuse to cooperate with the court-ordered treatment
plan, but that refusal would be a substantial, relevant factor
in determining whether or not parental rights should be
terminated.” Id. at 882-83. Because this amounted to an
impermissible penalty for invoking the privilege against selfincrimination, the court found the trial court’s order
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unenforceable to the extent it required the parents to
incriminate themselves. Id. at 883; see also Matter of A.D.L.,
402 P.3d 1280, 1285 (Nev. 2017) (agreeing “with other courts
that have held that a parent may not be compelled to admit a
crime under the threat of the loss of parental rights”); In re
C.H., 652 N.W.2d 144, 150 (Iowa 2002) (“The State may require
parents to otherwise undergo treatment, but it may not
specifically require an admission of guilt as part of the
treatment.”).
Here, the family court’s order implementing the Service
Plan lodges a “genuine, direct, and immediate” threat of
parental termination. See J.W., 415 N.W.2d at 882. As stated,
Dr. Najera testified that Father must admit to sexually abusing
the children to receive a clinical discharge as part of the
Service Plan. If Father does not receive a clinical discharge,
such failure will factor into the family court’s determination
of whether Father is “willing and able to provide [his children]
with a safe family home[.]” See HRS § 587A-7(a)(8). The family
court warned Father and Mother that “unless [he and Mother are]
willing and able to provide [their] children with a safe family
home with the assistance of a service plan within a reasonable
period of time, [their] parental rights and custodial duties
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shall be subject to termination, pursuant to law.” This threat
is akin to that in J.W.: admit to sexual abuse, or risk
termination of the fundamental liberty interest in the care,
custody, and control of his children. See J.W., 415 N.W.2d at
883; see also State v. Zuffante, 157 Hawai‘i 194, 203, 576 P.3d
243, 252 (2025) (“This illusory choice — either remain silent
and let decisive evidence go unchallenged, or testify to refute
the testimony — dents the right against self-incrimination.”).
The Service Plan is unconstitutional to the extent it
requires Father’s admission of sexual abuse. The State may
mandate therapy, but it may not go as far as requiring Father to
incriminate himself, particularly given that he has maintained
his innocence. See State v. Reyes, 93 Hawai‘i 321, 328-29, 2
P.3d 725, 732-33 (App. 2000) (vacating trial court’s sentencing
order where the trial court “expressly and explicitly
conditioned [defendant’s] probation upon his satisfactory
participation in [the statutorily mandated sex offender
treatment program], including admitting his sex crime(s).”).
To this end, we respectfully disagree with DHS’s contention
that the self-incrimination issue is unripe. On this record, it
is immaterial that the family court has not rendered a decision
with respect to the termination of parental rights. As the J.W.
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court noted, even though a petition for termination has yet to
be filed, the State’s “threat” is no less real. J.W., 415
N.W.2d at 882. “It is the threat itself, not necessarily its
implementation, that triggers the Fifth Amendment.” Id.
Accordingly, we do not find that “a later decision may be more
apt or that the matter is not yet appropriate for adjudication.”
Fields, 67 Haw. at 275, 686 P.2d at 1385 (cleaned up).
2. The privilege against self-incrimination does not
protect against the adverse consequences of failing to
undergo effective therapy.
Although the State may not require incriminating
disclosures as the Service Plan does, we note that therapy which
does not require admission to past offenses may not be
effective, “and ineffective therapy may hurt the parents’
chances of regaining their children.” J.W., 415 N.W.2d at 883.
Considering these competing concerns, the J.W. court 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 884. That court explained:
In the lexicon of the Fifth Amendment, the risk of losing
the children for failure to undergo meaningful therapy is
neither a “threat” nor a “penalty” imposed by the state.
It is simply a consequence of the reality that it is unsafe
for children to be with parents who are abusive and
violent.
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Id. (emphasis added). This principle is consistent with the law
in many other states, and we also adopt it under Article I,
Section 10 of the Hawaiʻi Constitution. See, e.g., Dep’t of Hum.
Servs. v. K.L.R., 230 P.3d 49, 54 (Or. App. 2010)
(“[T]erminating or limiting parental rights based on a parent’s
failure to comply with an order to obtain meaningful therapy or
rehabilitation, perhaps in part because a parent’s failure to
acknowledge past wrongdoing inhibits meaningful therapy, may not
violate the Fifth Amendment[.]”); In re Rosalie H., 889 A.2d
199, 207-08 (R.I. 2006) (concluding that the trial court did not
infringe on parents’ right against self-incrimination in
considering their refusal to admit to abuse in light of other
evidence supporting termination); In Int. of H.R.K., 433 N.W.2d
46, 50 (Iowa Ct. App. 1988) (affirming termination of parental
rights in light of evidence that included parents’ refusal to
admit to sexual abuse); In re J.A., 699 A.2d 30, 31 (Vt. 1997)
(trial count cannot “specifically require the parents to admit
criminal misconduct” but “if the parents’ denial of abuse
interferes with effective therapy, then the court may act on
that finding to the parents’ detriment without offending the
Fifth Amendment privilege[.]” (cleaned up)).
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We find this position fair, balanced, and necessary. This
court has long recognized that the “paramount consideration” in
child custody cases is the welfare of the child. Waldecker v.
O’Scanlon, 137 Hawai‘i 460, 468–69, 375 P.3d 239, 247–48 (2016)
(citing Dela Cruz v. Dela Cruz, 35 Haw. 95, 98 (Haw. Terr.
1939)); HRS § 587A-2 (2018) (“This chapter creates within the
jurisdiction of the family court a child protective act to make
paramount the safety and health of children who have been harmed
or are in life circumstances that threaten harm.”).
Additionally, as other courts have observed, parents can
begin to understand and reform their abusive behaviors by
acknowledging their past abuse, and “acknowledgment is an
important step in the rehabilitation of the family.” State v.
P.Z., 703 A.2d 901, 912 (N.J. 1997); H.R.K., 433 N.W.2d at 50
(“[T]he requirement that the parents acknowledge and recognize
the abuse before any meaningful change can occur is essential in
meeting the child’s needs.”).
Allowing the family court to consider whether a parent
engaged in meaningful therapy, which may hinge in part on the
parent’s failure to confront their past abuse alongside other
evidence supporting termination of parental rights, protects a
parent’s self-incrimination rights but also ensures that we
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uphold the “paramount” purpose of protecting children in
Hawai‘i. 11 See Waldecker, 137 Hawaiʻi at 468-69, 247-48.
Although we hold that 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.
E. We need not address whether the Service Plan violates
Father’s constitutional right to free speech.
As Father’s right against self-incrimination is dispositive
of this appeal, we need not reach the issue of whether the
Service Plan violates his right to free speech. Accordingly, we
decline to address that issue. See Ke Kauhulu o Mānā v. Bd. of
11 In this regard, we agree with the GAL’s argument that courts should not require transactional immunity every time a family court is faced with a parent who refuses to admit to sexual abuse of their child. As noted by the Minnesota Supreme Court:
If the state believes talking to the psychologist about
[the past offense] would help [the parents] become good
parents, the state could abandon its pursuit of criminal
prosecutions and apply to the court for a grant of immunity
for the parents. The parents could then, without fear of
prosecution or prison, participate in meaningful therapy.
With or without meaningful therapy, the parents may or may
not be successfully rehabilitated, but the results can only
be known after whatever treatment is tried.
J.W., 415 N.W.2d at 884.
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Land & Nat. Res., 156 Hawai‘i 356, 362 n.5, 575 P.3d 13, 19 n.5
(2025) (declining to address remaining issues where one issue
was dispositive of the appeal).
V. CONCLUSION
We vacate in part the ICA’s March 25, 2025 judgment on
appeal and the family court’s September 9, 2024 Orders
Concerning Child Protective Act in FC-S No. 23-00105 and FC-S
No. 24-00081 to the extent Father is required to comply with the
Service Plan condition that he admit to sexual abuse. And we
remand to the family court for further proceedings consistent
with this opinion. The ICA’s March 25, 2025 judgment on appeal
and the family court’s September 9, 2024 Orders Concerning Child
Protective Act in FC-S No. 23-00105 and FC-S No. 24-00081 are
otherwise affirmed.
Leigh Woodruff /s/ Vladimir P. Devens for Father
/s/ Sabrina S. McKenna
Lauren K. Chun
/s/ Todd W. Eddins
(Eric J. Alabanza and Julio C.
Herrera on the briefs) /s/ Lisa M. Ginoza for respondent Department of
Human Services /s/ Faʻauuga Toʻotoʻo
Jamie L. DeMello
(Makia Minerbi, Scott K.D.
Shishido, and Jessica C.M.
Uchida on the briefs)
for respondent Guardian Ad Litem
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