In re: I Children. Consolidated With Case No. CAAP-22-0000416.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-APR-2023
07:56 AM
Dkt. 71 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

IN THE INTEREST OF I CHILDREN

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 21-00150)

AND

IN THE INTEREST OF I CHILDREN

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 21-00152)

APRIL 28, 2023

GINOZA, C.J., AND HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

In these consolidated appeals, Appellant Father
(Father) appeals from two sets of orders entered successively by
the Family Court of the First Circuit (Family Court)1/ in two
related cases which, together, awarded Petitioner-Appellee
Department of Human Services (DHS) foster custody of OI, SI1,
SI2, NI, and JI (the Children). Specifically, Father appeals
from: (1) the June 29, 2022 Orders Concerning Child Protective

1/
The Honorable Jessi L. Hall presided.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Act as to OI, SI1, and SI2, entered in FC-S No. 21-00150; and (2)
the June 29, 2022 Orders Concerning Child Protective Act as to NI
and JI, entered in FC-S No. 21-00152 (collectively, the Orders).
On August 4, 2022, the Family Court entered separate Findings of
Fact and Conclusions of Law in the two cases.
Father raises the same point of error in each appeal,
which we construe as asserting that his trial counsel, Jacob G.
Delaplane (Delaplane), provided ineffective assistance of
counsel, and the Family Court thus abused its discretion in
denying Father's request for new counsel and in entering the
Orders. Relatedly, Father challenges findings of fact (FOFs) 13
and 28 in FC-S No. 21-00150 and FOFs 9 and 29 in FC-S No. 21-
00152.2/
In light of Father's contentions and the relevant case
law, we ordered the parties to file supplemental briefs
addressing, among other issues, whether the Family Court was
required by due process to conduct an examination of Father on
the record to determine the basis for his request for new
counsel. In response, both Father and DHS agreed that the Family
Court was required to conduct such an examination, and in not
doing so, the Family Court failed to comply with the requirements
of due process.

2/
Father's "points of error" do not comply with Rules Expediting
Child Protective Appeals (RECPA) Rule 11(a)(3) and (4). In particular,
Father's abbreviated opening briefs summarily list the following FOFs and
conclusions of law (COLs) as "points of error" but present no discernible
argument as to why the FOFs are clearly erroneous or the COLs are wrong: FOFs
15, 16, 19, 20, 21, 22, 30, 60, 61, 62, 63, 64, 65, 68, 69, 73, 74, 76, 81,
82, 83, 84, 85, 86, 87, and COLs 7, 9, and 10 in FC-S No. 21-00150, and FOFs
15, 16, 19, 20, 21, 22, 28, 31, 53, 54, 55, 56, 57, 66, 67, 69, 78, 79, 80,
81, 82, 83, 84, and COLs 7, 8, 9 and 11 in FC-S No. 21-00152. This court is
"not obliged to address matters for which the appellants have failed to
present discernible arguments." Hussey v. Say, 139 Hawai #i 181, 191, 384 P.3d
1282, 1292 (2016) (quoting Exotics Hawai#i-Kona, Inc. V. E.I. DuPont De
NeMours & Co., 116 Hawai#i 277, 288, 172 P.3d 1021, 1032 (2007)); see HRAP
Rule 28(b)(7).
In contrast, Father presents at least abbreviated arguments
regarding FOFs 13 and 28 in FC-S No. 21-00150 and FOFs 9 and 29 in FC-S No.
21-00152. We thus address those arguments to the extent discernible. See
Morgan v. Planning Dep't, Cnty. of Kauai, 104 Hawai #i 173, 180-81, 86 P.3d
982, 989-90 (2004) ("This court . . . has consistently adhered to the policy
of affording litigants the opportunity 'to have their cases heard on the
merits, where possible.'" (quoting O'Connor v. Diocese of Honolulu, 77 Hawai #i
383, 386, 885 P.2d 361, 364 (1994))).

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We hold that in the circumstances of this case, the
Family Court was required by due process to conduct a
"penetrating and comprehensive examination" of Father on the
record to determine the basis for his request for new counsel.
State v. Soares, 81 Hawai#i 332, 355, 916 P.2d 1233, 1256 (App.
1996) (quoting State v. Kane, 52 Haw. 484, 487–88, 479 P.2d 207,
209 (1971)). Because the required examination did not occur, we
remand these cases to the Family Court for a hearing on the basis
of Father's request for new counsel and a determination as to
whether Father's claim of ineffective assistance of counsel has
merit. The outcome of this hearing should determine whether the
further remedy of a new trial is necessary. See Kane, 52 Haw. at
488, 479 P.2d at 210.

I.

On September 10 and 14, 2021, DHS filed petitions for
temporary foster custody of the Children (Petitions) based on
SI1's allegations of sexual abuse by Father.
On September 15 and 17, 2021, the Family Court
appointed Delaplane as counsel for Father in FC-S Nos. 21-00150
and -00152, respectively.
On June 13, 2022, the Family Court held a contested
return hearing on the Petitions. DHS called one witness, social
worker Lavina Forvilly (Forvilly), whom the Family Court deemed
"an expert with regards to sex abuse in child welfare cases
. . . ." Forvilly testified on direct examination and then on
cross examination by Father and SJ, the Children's natural and
legal mother.
At the beginning of DHS's re-direct examination of
Forvilly, Father indicated that he wanted to speak with
Delaplane. The Family Court recessed to allow Father and
Delaplane to speak. When the Family Court reconvened, Delaplane
stated:

MR. DELAPLANE: Your Honor, . . . before Mr. Shimamoto
continues with his questions, my client has indicated that
he would like a new attorney.
THE COURT: We've already started trial. We are
going to continue with Mr. Delaplane through this trial, and

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we will provide you with a new attorney after the trial.
MR. DELAPLANE: Okay. He did request that I ask that
he be allowed to address the Court directly.

THE COURT: If you wish to do so, we can do so after
the questioning of this witness is done.

DHS then asked Forvilly to clarify certain statements made during
cross-examination, after which there were no further questions.
SJ called no witnesses and elected not to testify.
With respect to Father, the following exchange
occurred:

THE COURT: . . . .
Mr. Delaplane, did you have any witnesses? I know
[Father] was just to make a statement. And we'll allow that
in a second.

MR. DELAPLANE: I don't know the nature of the
statement that [Father] wants to make to the Court. I did
have discussions with him about testifying and his right to
either testify or not testify. And at this point, again,
because he's asked for new counsel, I'll say based on those
discussions, I don't feel comfortable representing whether
he wishes to testify or not.

THE COURT: So [Father], I understand you wish to make
a statement. Is that correct?

[FATHER]: Yes.

The Family Court then informed Father that the other
attorneys would be allowed to question him after his statement
and that anything he said could be used against him in a criminal
case. Father said he understood, and the Family Court swore him
in. At no point did the Family Court question Father on the
record as to the basis for his request for new counsel.
In his statement, Father recounted how the Children
were removed from home and school; expressed confusion as to why
the boys were removed "[i]f . . . they think I sexually abused
[SI1], or if they want to protect the girls"; and clarified that
Child Protective Services, not the police, picked-up the
Children. Father did not state why he wanted new counsel and
received no questions from any counsel.
After Father's statement, the Family Court indicated it
was ready to rule on the Petitions. The following exchange then
occurred:

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THE COURT: Mr. Delaplane, anything further?
MR. DELAPLANE: Just to reiterate my prior statement
that my client asked for new counsel, and part of our
request was so that new counsel could present evidence
refuting the State's allegations.

THE COURT: I understand that, Mr. Delaplane. But the
Court has heard enough evidence in this matter to render its
decision.

The court then stated its findings and rendered its decision,
awarding foster custody of the Children to DHS. The court
further stated: "At the end of today's proceedings, I will
discharge Mr. Delaplane. And I have my court officer already
working on getting you a new attorney, [Father]."
On June 20, 2022, the Family Court appointed Tae Chin
Kim (Kim) as Father's counsel. On June 27, 2022, Father filed a
motion for new trial in FC-S Nos. 21-00150 and -00152, "on the
basis that . . . [Delaplane] was ineffective, and did not allow
Father to 'defend' himself."
On June 28, 2022, Father filed the notices of appeal
initiating these appeals.3/

II.

"Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set aside
unless there is a manifest abuse of discretion." In re Doe, 95
Hawai#i 183, 189, 20 P.3d 616, 622 (2001) (quoting In re Jane
Doe, Born on May 22, 1976, 84 Hawai#i 41, 46, 928 P.2d 883, 888
(19956)) (internal quotation marks omitted).
We review Father's challenges to the Family Court's
FOFs for clear error. Id. at 190, 20 P.3d at 623.

A FOF "is clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2) despite
substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made." "'Substantial

3/
It appears that no order deciding the motion for new trial was
filed by the Family Court within 30 days after the motion was filed. Pursuant
to RECPA Rule 5, the motion for new trial was thus deemed denied on the 30th
day, i.e., July 27, 2022, and the time from which to file an appeal in each
case commenced on that day. Father's premature notices of appeal are deemed
timely under HRAP Rule 4(a)(2) and RECPA Rules 1 and 3.

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evidence' is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion."

Id. (citations and ellipsis omitted). We likewise review mixed
findings of fact and conclusions of law under the clearly
erroneous standard. See In re JM, 150 Hawai#i 125, 137, 497 P.3d
140, 152 (App. 2021).
"We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard." Id. (quoting
State v. Ui, 142 Hawai#i 287, 292, 418 P. 3d 628, 633 (2018)).

III.

Father contends that Delaplane provided ineffective
assistance of counsel, and the Family Court thus abused its
discretion in denying Father's request for new counsel and in
entering the Orders. Relatedly, Father argues that "in failing
to grant his request for new trial counsel, the [Family Court]
has violated [Father's] right to effective counsel, and his due
process rights."
In State v. Soares, this court stated:

[W]hen an indigent defendant requests that his or her
appointed counsel be replaced, the trial court has a duty to
conduct a "penetrating and comprehensive examination" of the
defendant on the record, in order to ascertain the bases for
the defendant's request. State v. Kane, 52 Haw. 484,
487–88, 479 P.2d 207, 209 (1971)). This inquiry is
necessary to protect "the defendant's right to effective
representation of counsel," id., and must be sufficient to
enable the court to determine if there is good cause to
warrant substitution of counsel. Brown v. Craven, 424 F.2d
1166, 1169–70 (9th Cir. 1970); People v. Marsden, 2 Cal.3d
118, 84 Cal. Rptr. 156, 159–160, 465 P.2d 44, 47–48 (1970);
People v. Arguello, 772 P.2d 87, 94 (Colo. 1989); State v.
Bronson, 122 Or. App. 493, 858 P.2d 467, 469 (1993).

81 Hawai#i at 355, 916 P.2d at 1256 (brackets omitted), overruled
on other grounds by State v. Janto, 92 Hawai#i 19, 986 P.2d 306
(1999); see Kane, 52 Haw. at 487, 479 P.2d at 210 (holding that
the defendant was constitutionally entitled to a hearing on his
objections to appointed counsel); see also State v. Harter, 134
Hawai#i 308, 323, 328-29, 340 P.3d 440, 455, 460-61 (2014)
(quoting and applying Soares).

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Kane, Soares, and Harter are criminal cases. However,
"in light of the constitutionally protected liberty interest at
stake in a termination of parental rights [(TPR)] proceeding,
. . . indigent parents are guaranteed the right to
court-appointed counsel in termination proceedings under the due
process clause in article I, section 5 of the Hawai#i
Constitution." In re T.M., 131 Hawai#i 419, 436, 319 P.3d 338,
355 (2014) (footnote omitted). In addition, "the right to
counsel in termination of parental rights cases, where
applicable, includes the right to effective counsel." In re RGB,
123 Hawai#i 1, 25, 229 P.3d 1066, 1090 (2010) (construing federal
constitution).
Here, it is undisputed that Father had a due-process
right to court-appointed counsel, including a right to effective
counsel, when DHS filed the Petitions for temporary foster
custody of the Children. See In re L.I., 149 Hawai#i 118, 122,
482 P.3d 1079, 1083 (2021); In re RGB, 123 Hawai#i at 25, 229
P.3d at 1090. It is also undisputed that during trial, Father
requested new counsel. Accordingly, we ordered the parties to
file supplemental briefs addressing:

(1) whether the Family Court was required by due process to
conduct an examination of Father on the record, in order to
ascertain the basis for his request for new counsel; (2)
whether, absent a hearing on the basis for Father's
objections to his appointed counsel, the Family Court
complied with the requirements of due process in considering
Father's request for new counsel; and (3) whether, in the
event a due process violation is found, these cases should
be remanded to the Family Court for a hearing, to be put on
the record, of Father's claim of ineffective assistance of
counsel. See Kane, 52 Haw. at 487, 479 P.2d at 210.

In responding to our order for supplemental briefing,
both Father and DHS agree that the Family Court was required by
due process to conduct an examination of Father on the record to
determine the basis for his request for new counsel, and in not
doing so, the Family Court failed to comply with the requirements
of due process. In addressing the appropriate remedy for this
failure, DHS contends that, consistent with the result in Kane,
these cases should be remanded to the Family Court for a hearing
to put on the record Father's reason for requesting new counsel.
Father, on the other hand, argues that these cases should be

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remanded to the Family Court for a hearing not only to put on the
record Father's claim of ineffective assistance of trial counsel,
but also to retry the case.
We agree that in the circumstances of this case, the
Family Court was required by due process to conduct a
"penetrating and comprehensive examination" of Father on the
record to determine the basis for his request for new counsel.
Soares, 81 Hawai#i at 355, 916 P.2d at 1256 (quoting Kane, 52
Haw. at 487–88, 479 P.2d at 209). In Kane, the Hawaii Supreme
Court held that when an indigent defendant requests that
appointed counsel be replaced, due process requires that: (1)
the defendant "have an opportunity to state on the record the
basis for his objections to appointed counsel"; and (2) "a
determination be made by the trial court as to the merits of
these objections." 52 Haw. at 488, 479 P.2d at 210. A
"penetrating and comprehensive examination" of the defendant by
the trial court is necessary to protect the defendant's right to
effective representation of counsel, and must be sufficient to
enable the court to determine if there is "good cause" to warrant
new counsel. Id. at 487–88, 479 P.2d at 209; Soares, 81 Hawai#i
at 355, 916 P.2d at 1256. Further, absent a hearing on the basis
for the defendant's objections to their appointed counsel, "it is
impossible for a reviewing court to determine whether a claim of
inadequate representation is justified." Kane, 52 Haw. at 487,
479 P.2d at 209; see Soares, 81 Hawai#i at 356, 916 P.2d at 1257
(because the trial court failed to conduct the hearing required
by Kane, "this court is unable to evaluate the merits of
Defendant's claim that his constitutional right to effective
assistance of counsel was prejudiced when the trial court denied
his request for substitute counsel").
Although Father is not a criminal defendant in this
matter, as an indigent parent in TPR proceedings, he has a
constitutionally guaranteed right to court-appointed counsel,
including the right to effective counsel. See In re T.M., 131
Hawai#i at 436, 319 P.3d at 355; In re RGB, 123 Hawai#i at 25, 229
P.3d at 1090. The supreme court has explained:

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Inherent in the substantive liberty interest that parents
have in the care, custody, and control of their children
under the Hawai#i Constitution is the right to counsel to
prevent erroneous deprivation of their parental interests.
As Justice Stevens asserted in Lassiter[ v. Dep't of Social
Services], the State's decision to deprive a parent of his
or her child is often "more grievous" than the State's
decision to incarcerate a criminal defendant. Lassiter, 452
U.S.[ 18,] 59, 101 S. Ct. 2153[ (1981)] (Stevens, J.,
dissenting).

In re T.M., 131 Hawai#i at 434, 319 P.3d at 353. Accordingly,
inasmuch as the right to effective counsel requires the trial
court to conduct a "penetrating and comprehensive examination" of
a criminal defendant on the record to determine the basis for the
defendant's request that appointed counsel be replaced, that
right applies with equal force in the present context, where the
state seeks to terminate Father's parental rights, and Father
requested that his appointed counsel be replaced. It is equally
true that absent a hearing on the basis for Father's objections
to his appointed counsel, "it is impossible for [this court] to
determine whether a claim of inadequate representation is
justified." Kane, 52 Haw. at 487, 479 P.2d at 209.
Because the required examination plainly did not occur
here, the question remains as to the proper disposition of this
appeal. In Kane, the supreme court similarly concluded that the
defendant was constitutionally entitled to a hearing on his
objections to appointed counsel. There, the court reasoned:

We do not believe that the error below automatically
requires a new trial. The defendant complains that he was
denied a hearing on his objections, and we hold that he must
be given one. The outcome of such hearing should determine
whether the further remedy of a new trial is necessary.
This procedure was adopted by the Supreme Court in Jackson
v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964), in a case involving the denial of a judicial hearing
on the voluntariness of a confession. The present situation
is analogous. We believe the most satisfactory disposition
of this case will be achieved by following the procedures
set forth by the Supreme Court in Jackson, supra at 394, 84
S. Ct. at 1790.

52 Haw. at 488, 479 P.2d at 210. The court thus remanded the
case to the circuit court for a hearing, to be put on the record,
of the defendant's claim of ineffective representation. Id. The
court further stated: "If the claim proves to be without merit
the court may re-enter the judgment. If the claim is meritorious

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there should be a new trial." Id.
We conclude that the same disposition is appropriate
here. Because the required examination of Father did not occur
during the June 13, 2022 contested hearing, these cases must be
remanded to the Family Court for a hearing on the basis of
Father's request for new counsel at the June 13, 2022 hearing,
and a determination as to whether Father's claim of ineffective
assistance of counsel at that point has merit. Based on the
reasoning in Kane, the outcome of such a hearing should determine
whether the further remedy of a new contested hearing is
necessary. If Father's claim of ineffective assistance of
counsel proves to be without merit, the Family Court may re-enter
the Orders. If the claim is meritorious, there should be a new
contested hearing. Father provides no authority — and we have
found none — supporting his position that this court should order
a new contested hearing, absent a hearing to determine whether
Father's claim of ineffective assistance of counsel has merit.
Moreover, the current record is insufficient for this court to
determine whether Father's claim of inadequate representation is
justified. That deficiency is best remedied by a hearing in the
Family Court addressing Father's claim.
Relatedly, we conclude that FOFs 13 and 28 in FC-S No.
21-00150 and FOF 9 and 29 in FC-S No. 21-001524/ are clearly
erroneous to the extent the Family Court found that Delaplane
competently and zealously represented Father throughout the court

4/
FOF 13 (in FC-S No. 21-00150) and FOF 9 (in FC-S No. 21-00152)
state:
. . . DELAPLANE and . . . KIM competently and
zealously represented [Father] throughout the court
proceedings.

FOF 28 (in FC-S No. 21-00150) and FOF 29 (in FC-S No. 21-00152)
state:

During the trial, after the completion of
cross-examination [of] the DHS social worker . . . FORVILLY,
[Father] requested a recess to speak to his court-appointed
counsel and subsequently requested that the Court appoint
new counsel for him. The Court denied the request to have
new counsel appointed, at that time. The trial continued
with the DHS completing re-direct examination of its witness
and the DHS rested its case. No other parties presented
evidence for the Court to consider in reaching its decision.

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proceedings, and denied Father's request to have new counsel
appointed, without first examining Father on the basis for his
request for new counsel. Given our decision to remand this case
to the Family Court for further proceedings, we do not reach
Father's remaining points of error as to the multiple FOFs and
COLs summarily listed in his opening briefs.5/ See supra note 2.

IV.

For the reasons discussed above, we vacate FOFs 13 and
28 in the August 4, 2022 Findings of Fact and Conclusions of Law
entered in FC-S No. 21-00150, and FOFs 9 and 29 in the August 4,
2022 Findings of Fact and Conclusions of Law entered in FC-S No.
21-00152, to the extent specified in this opinion. We remand
these cases to the Family Court for a hearing on the basis of
Father's request for new counsel at the June 13, 2022 contested
hearing, a determination as to whether Father's claim of
ineffective assistance of counsel at that point has merit, and
further proceedings consistent with this opinion.

On the briefs:

Tae Chin Kim /s/ Lisa M. Ginoza
for Appellant Father Chief Judge

Kurt J. Shimamoto, /s/ Keith K. Hiraoka
Julio C. Herrera, Associate Judge
Patrick A. Pascual, and
Abigail D. Apana,
Deputies Attorney General, /s/ Clyde J. Wadsworth
for Petitioner-Appellee Associate Judge

5/
We express no opinion on the merits of Father's claim that
Delaplane provided ineffective assistance of counsel.

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