NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-AUG-2021 07:53 AM Dkt. 100 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
IN THE INTEREST OF AB and BB
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 14-00235)
SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Appellant Mother (Mother) appeals from the Order
Terminating Parental Rights, filed on October 21, 2020, and the
Orders Concerning Child Protective Act, filed on October 22, 2020
(collectively, the TPR Orders), in the Family Court of the First
Circuit (Family Court).1 Mother also challenges, in part, the
Family Court's November 19, 2020, Findings of Fact and
Conclusions of Law (FOFs and COLs). Mother's parental rights to
her children, AB and BB (collectively, Children), were terminated
and permanent plans with the goal of adoption were approved.2
1/ The Honorable Jessi L.K. Hall presided. 2/ The parental rights of Children's legal and natural father (Father) – who did not participate in these proceedings and was defaulted – were also terminated. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Mother raises four points of error on appeal,
contending that: (1) the TPR Orders are wrong because there were
less restrictive measures to ensure the best interests of the
Childen; (2) FOF 90 is clearly erroneous because it lumped Mother
and Father together, even though they are divorced, Mother was
willing and able to provide Children with a safe family home,
with the assistance of a service plan it was reasonably
foreseeable that Mother would become willing and able to provide
Children with a safe family home within a reasonable period of time, and the May 6, 2020 Permanent Plans (Permanent Plans) and
goal of adoption were not in the best interests of the Children;
(3) FOF 91 is clearly erroneous because Mother was willing and
able to provide Children with a safe family home, with the
assistance of a service plan it was reasonably foreseeable that
Mother would become willing and able to provide Children with a
safe family home within a reasonable period of time, and the
Permanent Plans and goal of adoption were not in the best
interests of the Children; and (4) COLS 15, 16, and 17 are wrong
because Mother completed all of her services and it is
implausible that she could have completed all of her services and
still could not provide a safe family home for the Children, even
with the assistance of a service plan.
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 by the parties, we
resolve Mother's points of error as follows:
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FOFs 90 and 91 and COLs 15, 16, and 17 state: FINDINGS OF FACT
. . . . 90. On September 30, 2020, pursuant to [Hawaii Revised Statutes (HRS)] § 587A-33(a), the court found by clear and convincing evidence that: (1) Mother and Father were not willing and able to provide the Children with a safe family home, even with the assistance of a service plan; (2) it was not reasonably foreseeable that Mother and Father would becoming [sic] willing and able to provide the Children with a safe family home, even with the assistance of a service plan, within a reasonable period of time; and (3) the Permanent Plans, with the goal of adoption, dated May 6, 2020, were in the best interests of the Children.
91. Accordingly, on September 30, 2020 the Court entered orders granting the DHS' Motion to TPR pursuant to HRS § 587A-33(b), terminating Mother and Father's parental rights, awarding permanent custody of the Children to the DHS, and ordering the permanent plans, with the goals of adoption, dated May 6, 2020. The Order Terminating Parental Rights and the Letters of Permanent Custody were filed on October 21, 2020. . . . . CONCLUSIONS OF LAW
. . . . 15. Mother and Father are not presently willing and able to provide the children with a safe family home, even with the assistance of a service plan. 16. It is not reasonably foreseeable that Mother and Father will become willing and able to provide the child[ren] with a safe family home, even with the assistance of a service plan, within a reasonable period of time.
17. The Permanent Plans dated May 6, 2020, with the goal of adoption, are in the best interest of the children.
As a preliminary matter, we note that the Children
entered foster care in January of 2015. Mother contends that
FOFs 90 and 91 are clearly erroneous and COLs 15, 16, and 17 are
wrong because Mother was willing and able to provide a safe
family home, especially with the assistance of a service plan, it
was reasonably foreseeable Mother would become willing and able
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to provide a safe family home, especially with the assistance of
a service plan, within a reasonable period of time, and the
Permanent Plans with the goal of adoption were not in the best
interest of the children. Mother challenges FOF 90 because the
Family Court "lumped together father and mother in the finding of
fact, even through the two are divorced." Mother claims that
there was no clear and convincing evidence that she was unwilling
or unable to provide a safe family home, even with the assistance
of a service plan. Mother notes that she completed all of the services identified in the service plan, that she had
homeschooled the Children,3 and a witness, Dr. Taketa-Wong,
testified that Mother's house was livable and that Dr. Taketa-
Wong found no signs of abuse, bruising, or injury. Mother
submits that "the court can terminate parental rights if the
child is likely to be adopted. That was not the case here,
especially as AB was only a few months away from his 18th
Birthday. . . Thus, continued supervision of [Mother] and a
continued proposed reunification plan was clearly in the best
interests of AB and BB[.]"
FOF 90 is not clearly erroneous because it stated both
Mother and Father as unwilling and unable to provide a safe
family home. Generally speaking, marital status is not
implicated in a proceeding related to the termination of parental
3/ This appears to be in response to the fact that when BB entered foster care at age 9, he had never attended school.
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rights. See HRS § 587A-33 (2018).4 The Family Court found
Father had been defaulted in the case since November 2, 2015, and
had expressed to Petitioner-Appellee the State of Hawai#i,
Department of Human Services (DHS) that he did not want to
reunify with the Children or participate in any services; thus,
Father was unwilling and unable to provide a safe family home.
4/ HRS § 587A-33 provides, in relevant part: § 587A-33 Termination of parental rights hearing. (a) At a termination of parental rights hearing, the court shall determine whether there exists clear and convincing evidence that:
(1) A child's parent whose rights are subject to termination is not presently willing and able to provide the parent's child with a safe family home, even with the assistance of a service plan; (2) It is not reasonably foreseeable that the child's parent whose rights are subject to termination 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, which shall not exceed two years from the child's date of entry into foster care;
(3) The proposed permanent plan is in the best interests of the child. In reaching this determination, the court shall:
(A) Presume that it is in the best interests of the child to be promptly and permanently placed with responsible and competent substitute parents and family in a safe and secure home; and (B) Give greater weight to the presumption that the permanent plan is in the child's best interest, the younger the child is upon the child's date of entry into foster care; and (4) The child consents to the permanent plan if the child is at least fourteen years old, unless the court consults with the child in camera and finds that it is in the best interest of the child to proceed without the child's consent.
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The FOFs concerning Father were not the basis for the Family
Court's termination of Mother's parental rights. There were
independent and unrelated bases for terminating Mother's parental
rights.
We conclude that there was clear and convincing
evidence that Mother was not presently willing and able to
provide a safe family home, even with the assistance of a service
plan, even though she had completed services. Unchallenged FOFs
include that, in 2011, DHS was contacted several times due to Mother's violent, threatening, and out of control behaviors
involving the Children. In 2014, DHS assumed temporary foster
custody of the Children through police protective custody and
confirmed physical threat of abuse, neglect, and educational
neglect. At the same time, Mother was evicted by the police, and
the home was observed to be unsanitary, filthy, and strongly
smelling of urine; the home had very little food, several windows
were broken, and the Children were not enrolled in school and
were socially isolated.
Jahona Jackson (Jackson), a DHS human services
professional qualified to testify as an expert in the field of
social work and child protective and child welfare services,
testified that both AB and BB have high needs. AB, who is
autistic, has needs that are more physical, and BB needs
emotional stability.
It was reported that by February 15, 2019, Mother
completed recommended services in her service plan such as
parenting classes, individual therapy, and anger management, but
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not intensive in-home family therapy to address topics such as
reconnection, coping skills, developing a support system,
community linking, and parenting a child with special needs.
Although Mother had completed an anger management course, she had
inconsistent insight and use of skills, which caused her ability
to manage her anger to remain a concern.
Among other incidents that occurred after Mother
received services, with respect to AB, in April 2019, Mother
decided not to give AB all of his prescribed medication during an unsupervised weekend visit because she wanted to see how AB would
do without the medication. Mother reported that AB attacked her
while she was driving on the freeway. In July 2019, when AB was
returned from another visit with Mother, there were still six
tablets in the bottle for his prescription medication, indicating
that Mother had not provided AB with his medication as
prescribed. Mother claimed information from the internet
indicated AB's prescribed medication was poisoning him and
instructed the resource caregivers to stop giving it to AB.
Jackson testified that Mother displayed no insight as to the
possible harmful and life-threatening effects of altering AB's
medications without medical guidance.
In May 2020, AB was hospitalized for water
intoxication, which occurred after Mother allowed or gave AB more
than twelve liters of water. Even after being advised by
hospital personnel not to give AB any more fluids while waiting
to be assessed, Mother gave AB three more liters of water. AB
cannot regulate his food or beverage intake, but Mother suggested
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that AB stop one of his medications because she thought it made
AB repeatedly ask for water. Jackson stated Mother did not show
insight as to administering basic needs of a child with AB's
conditions, because a caregiver would limit the amount of AB's
water by redirection or just saying no.
DHS's concerns about Mother's ability to parent BB
include that BB did not believe that Mother would be able to
provide the structure he would need, BB was exposed to emotional
and mental trauma, and Mother's absence from 2015 to 2017 caused trauma to BB, who was fifteen years old at the time of trial.5
Mother would randomly show up to a foster home without having
visitation, and demand to see the Children for their birthdays
but then would not participate in the family court case to
reunify with the Children. Jackson did not think that Mother had
addressed the issues that necessitated removal of the Children
because Mother completed services, but failed to display insight
into the Children's needs. Jackson stated that Mother is not
able to provide for BB's emotional and psychological needs, she
failed to show insight or acknowledgments, she has not expressed
any responsibility concerning how the Children are developing,
and she does not think that she contributed to the Children's
5/ FOFs 26 and 27, which are not challenged on appeal, state:
26. Mother was absent in this case and defaulted for over two years, from April 22, 2015 through June 14, 2017. During this time, Mother did not contact the Children or maintain any contact with the DHS. The DHS made several reasonable attempts to contact Mother and engage Mother in services by calling her and sending her emails. 27. Ms. Jackson testified that during this time period she attempted to call Mother from other phone numbers and that when Mother realized it was Ms. Jackson, Mother would hang up.
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emotional and/or developmental state. During therapy sessions
involving Mother and BB, Mother was told not to do certain
things, but Mother persisted in those things, such as asking BB
to live with her, promising BB things, offering BB things, and
insisting on giving BB a cell phone during therapeutic services.
Mother denied such actions, but the Family Court did not find
Mother's testimony to be credible. The Family Court found
Jackson to be a credible witness.
Jennifer Cartwright (Cartwright), BB's therapist,
testified that Mother was defensive and unable to admit to some
of her parenting issues. Cartwright had concerns regarding
Mother's ability to provide for BB's safety and needs because
Mother was unable to recognize what is in BB's best interest;
Mother instead tried to bribe BB with games and other things.
Cartwright stated that Mother cannot stand up to BB and Mother
gave in to whatever BB wanted. In Cartwright's opinion, it is
not in BB's best interest to reunify with Mother because further
dragging the case on would not allow BB to move forward. The
Family Court found Cartwright to be a credible witness.
The hearing on whether to terminate Mother's parental
rights began on July 23, 2020, although from April to June 2020,
DHS was not able to determine Mother's whereabouts.
Mother testified that AB was not enrolled in school at
the time DHS became involved because he was abused at Ewa
Elementary School, BB was also abused at public school, and BB
asked to do home school. Mother did not, however, register with
or inform the Department of Education that the Children were
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being homeschooled nor certify curriculum compliance. As noted
above, the Family Court found Mother was not credible.
Mother's reliance upon Dr. Taketa-Wong's opinion that
Mother's house was livable is unwarranted because Dr. Taketa-Wong
visited Mother's residence in 2013, while DHS reported that the
family home was unsanitary and filthy in November of 2014.
Likewise, Dr. Taketa-Wong's statement that she found no signs of
abuse, bruising, or injury to AB is unhelpful because she saw AB
in 2013, while DHS observed bruising and marks when it became involved in November of 2014. In any case, Jackson clarified
that there was no allegation of physical abuse, only threat of
abuse, neglect, and physical neglect.
For these reasons, as well as the entirety of the
evidence in the record of appeal, we conclude that there was
clear and convincing evidence that Mother was not presently
willing and able to provide a safe family home, even with the
assistance of a service plan. Even after completing services,
Mother was not able to provide for AB's physical needs by
preventing harm. Mother was not able to provide for BB's
emotional and psychological needs, by recognizing the harm she
caused and following his therapist's guidelines for conjoint
therapy sessions which would lead to reunification. Mother
disengaged from the case in the months immediately prior to the
start of the hearing seeking to terminate her parental rights
(after a previous absence from the case, without maintaining
contact with the Children or DHS, for a period of over two
years).
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We further conclude that there was clear and convincing
evidence that it was not foreseeable that Mother would become
willing and able to provide a safe family home, even with the
assistance of a service plan, within a reasonable period of time
not to exceed two years from the date the Children entered foster
care. The Children entered foster care in January of 2015. At
the time the hearing on terminating Mother's parental rights
began on July 20, 2020, the Children had been in foster care for
five and a half years. Clearly, it was not foreseeable that Mother would become willing and able to provide the children with
a safe family home within two years of entering foster care. In
addition, Cartwright testified that it would take two more years
of family and individual therapy before Mother could have
unsupervised contact with BB. Thus, it would have been at least
another two years before Mother could be reunified with the
Children.
Mother challenges the Family Court's approval of the
Permanent Plans with adoption as the goal for both AB and BB.
Mother incorrectly suggests that the court can only terminate
parental rights if the child is likely to be adopted or that
family supervision or continued efforts at reunification is
possible, after a finding that a parent is not willing and able
to provide a safe family home and it is not reasonably
foreseeable a parent will become willing and able to provide a
safe family home. Rather, the Family Court must find that the
proposed permanent plan is in the best interest of the child
before terminating parental rights. HRS § 587A-33(a)(3). A
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permanent plan must state whether the permanency goal will be
achieved through adoption, legal guardianship, or permanent
custody, with adoption being the preferred option, unless there
is a compelling reason that legal guardianship or permanent
custody is in a child's best interest. HRS § 587A-32(a)(1)
(2018). Thus, the likelihood of adoption is not required before
parental rights may be terminated; family supervision or
continued reunification efforts is not an option for a permanent
plan. Because AB and BB were over fourteen years of age at the time Mother's parental rights were terminated, AB and BB were
required to consent to the permanent plan or the court was
required to find it was in the Children's best interest to
proceed without their consent. HRS § 587A-33(a)(4). BB
consented to the permanent plan with the goal of adoption and the
Family Court found that AB was not competent to consent to a
permanent plan. Although AB would be turning eighteen a short
time after Mother's parental rights were terminated, DHS stated
that it would extend foster care past AB's 18th birthday to
ensure that he has a caregiver. Mother provided no argument that
it was in the Children's best interest that the permanent plan
goal should be legal guardianship or permanent custody.
Therefore, we conclude that FOFs 90 and 91 are not clearly
erroneous and COLs 15, 16, and 17 are not wrong.
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For these reasons, the Family Court's October 21, 2020,
and October 22, 2020 TPR Orders are affirmed.
DATED: Honolulu, Hawai#i, August 27, 2021.
On the briefs: /s/ Lisa M. Ginoza Shawn A. Luiz, Chief Judge for Respondent/Mother-Appellant. /s/ Katherine G. Leonard Scott D. Boone, Associate Judge Julio C. Herrera, Ian T. Tsuda, /s/ Keith K. Hiraoka Deputy Attorneys General, Associate Judge for Petitioner-Appellee Department of Human Services. Michelle K. Moorehead, (Legal Aid Society of Hawai#i), Guardian Ad Litem for BB