*** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 17-MAR-2023 11:52 AM Dkt. 28 MO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
IN THE INTEREST OF JB
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; FC-S NO. 17-00089)
MEMORANDUM OPINION (By: Recktenwald, C.J., Nakayama, McKenna, and Eddins, JJ., and Wilson, J., dissenting 1)
The Department of Human Services (DHS) and Resource
Caregivers (RCGs) appeal from the Intermediate Court of Appeals’
(ICA) judgment on appeal vacating the Family Court of the First
Circuit’s order terminating a father’s parental rights.
The ICA found that the family court structurally erred when
it discharged Father’s counsel during ongoing Child Protective
Act (CPA) proceedings. The ICA ordered a new trial.
We reverse.
1 Justice Wilson’s dissent is forthcoming. *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
I.
DHS petitioned for temporary foster custody of a child, JB,
in May 2017. The court immediately appointed counsel for the
child’s parents. Father and counsel appeared at the first two
CPA hearings. Then Father stopped participating in the case.
After Father failed to appear at a required hearing, the
family court entered default against him. Counsel, however,
remained on the case. Five months later, Father failed to
appear at another hearing. The court continued Father’s default
and discharged his counsel. 2
In July 2019, DHS moved to terminate parental rights (TPR).
Before filing its TPR motion, DHS notified Father of its
intention to move to terminate his parental rights. Father
expressed disinterest; he refused to participate in the case. 3
Trial on DHS’s TPR motion began in February 2021. Mother,
who had participated throughout the CPA proceedings, appeared
with her counsel. But Father did not show. He had not appeared
2 The Honorable Jeffrey A. Hawk entered the default against Father on November 2, 2017. The Honorable Brian A. Costa discharged Father’s counsel on April 17, 2018.
3 Father had reported to DHS that he obtained a temporary restraining order (issued on June 21, 2017 and set to expire on June 21, 2020) against Mother and that he was concerned about his safety. When DHS informed Father about the upcoming TPR motion, he said that he would not get involved in the case. DHS told Father that it would try to place JB with his maternal grandfather; Father liked this proposed placement, preferring that JB not be placed with strangers.
2 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
in family court since July 2017. The family court continued the
entry of default against Father. 4
On the fifth and final day of trial, Father – after nearly
four years – showed up in family court. So did his lawyer. 5
Counsel asked the court to set aside Father’s default,
postpone the trial, and give Father the opportunity to challenge
DHS’s TPR motion. After counsel argued to set aside the
default, Father had an opportunity to address the court. The
court asked Father why he had failed to show up to court over
the past several years. Father replied: “there was
complications in the case before” due to his hostile
relationship with Mother. He further explained that he was
“trying . . . [to] let everything settle” and he was “under the
impression that [JB’s maternal] grandfather was going [to get]
custody” of JB.
The court denied the motion to set aside the default and
excused Father’s counsel. The court explained that a few years
back, it “gave . . . an extra five months or so to [Father] and
[his counsel] to try and re-establish contact.” It also
observed “[t]his case has been ongoing with no input from
4 The court made the same finding on each day of trial. The Honorable Andrew T. Park presided over the TPR trial.
5 Father had called the family court and asked about the case. Staff advised Father about the next day’s court hearing. The court reappointed his counsel.
3 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
father.” The court pointed out that Father had missed over 29
hearings between November 2017 and April 2021.
Thus, the court concluded Father did not show good cause to
support his motion to set aside the entry of default. See Chen
v. Mah, 146 Hawai‘i 157, 457 P.3d 796 (2020). The court
explained that it “was well grounded in making that
determination in denying father’s motion to set aside his
default after his . . . [over] three years of absence in the
case and his lack of participation in not only the case, in
visitation, or contact with the child, contact with the
department, or services.”
The court granted DHS’s motion and terminated Father’s
parental rights. The court made the necessary findings under
Hawaiʻi Revised Statutes (HRS) § 587A-33(a) (2018). It filed an
order terminating parental rights and letters of permanent
custody on April 5, 2021.
Father appealed. He argues the discharge of counsel
constituted structural error.
The ICA agreed. Because the court had discharged counsel
during the CPA proceedings, the ICA concluded that structural
error happened. The ICA vacated the TPR order and remanded the
case.
We accepted DHS’s and RCGs’ applications for certiorari.
4 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
II.
We hold that Father received a fundamentally fair trial.
This court recently addressed what happens after a court
appoints counsel at the start of Child Protective Act
proceedings and later discharges counsel due to a parent’s
deliberate failure to appear in court. In the Interest of JH,
No. SCWC-XX-XXXXXXX, 2023 WL 2518743 (Haw. Mar. 15, 2023), held
that our case law “do[es] not require automatic reversal for
structural error when an indigent parent is not from start to
finish represented by court-appointed counsel in CPA
proceedings.” Id.
Instead, a fundamental fairness test applies to determine
whether parents received due process before their parental
rights terminated. “There is no violation of a parent’s due
process right to counsel when a family court discharges and
later reappoints counsel, and the case, viewed in its entire
context, establishes that the parent received a fundamentally
fair trial and the family court accurately determined that
parental rights should terminate.” JH, No. SCWC-XX-XXXXXXX,
2023 WL 2518743, at *6.
Here, the court timely appointed Father counsel. After
Father was defaulted for failure to appear, his counsel remained
in the case. Only when Father failed to show at the next
hearing five months later did the court discharge his attorney.
5 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
And once Father contacted the family court after nearly four
years of disinterest and no participation, the court reappointed
his counsel.
When Father resurfaced in the case, the court gave him an
opportunity to set aside his default. Father addressed the
court. Counsel argued on his behalf. Because Father did not
show good cause to support his belated request, the family court
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*** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 17-MAR-2023 11:52 AM Dkt. 28 MO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
IN THE INTEREST OF JB
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; FC-S NO. 17-00089)
MEMORANDUM OPINION (By: Recktenwald, C.J., Nakayama, McKenna, and Eddins, JJ., and Wilson, J., dissenting 1)
The Department of Human Services (DHS) and Resource
Caregivers (RCGs) appeal from the Intermediate Court of Appeals’
(ICA) judgment on appeal vacating the Family Court of the First
Circuit’s order terminating a father’s parental rights.
The ICA found that the family court structurally erred when
it discharged Father’s counsel during ongoing Child Protective
Act (CPA) proceedings. The ICA ordered a new trial.
We reverse.
1 Justice Wilson’s dissent is forthcoming. *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
I.
DHS petitioned for temporary foster custody of a child, JB,
in May 2017. The court immediately appointed counsel for the
child’s parents. Father and counsel appeared at the first two
CPA hearings. Then Father stopped participating in the case.
After Father failed to appear at a required hearing, the
family court entered default against him. Counsel, however,
remained on the case. Five months later, Father failed to
appear at another hearing. The court continued Father’s default
and discharged his counsel. 2
In July 2019, DHS moved to terminate parental rights (TPR).
Before filing its TPR motion, DHS notified Father of its
intention to move to terminate his parental rights. Father
expressed disinterest; he refused to participate in the case. 3
Trial on DHS’s TPR motion began in February 2021. Mother,
who had participated throughout the CPA proceedings, appeared
with her counsel. But Father did not show. He had not appeared
2 The Honorable Jeffrey A. Hawk entered the default against Father on November 2, 2017. The Honorable Brian A. Costa discharged Father’s counsel on April 17, 2018.
3 Father had reported to DHS that he obtained a temporary restraining order (issued on June 21, 2017 and set to expire on June 21, 2020) against Mother and that he was concerned about his safety. When DHS informed Father about the upcoming TPR motion, he said that he would not get involved in the case. DHS told Father that it would try to place JB with his maternal grandfather; Father liked this proposed placement, preferring that JB not be placed with strangers.
2 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
in family court since July 2017. The family court continued the
entry of default against Father. 4
On the fifth and final day of trial, Father – after nearly
four years – showed up in family court. So did his lawyer. 5
Counsel asked the court to set aside Father’s default,
postpone the trial, and give Father the opportunity to challenge
DHS’s TPR motion. After counsel argued to set aside the
default, Father had an opportunity to address the court. The
court asked Father why he had failed to show up to court over
the past several years. Father replied: “there was
complications in the case before” due to his hostile
relationship with Mother. He further explained that he was
“trying . . . [to] let everything settle” and he was “under the
impression that [JB’s maternal] grandfather was going [to get]
custody” of JB.
The court denied the motion to set aside the default and
excused Father’s counsel. The court explained that a few years
back, it “gave . . . an extra five months or so to [Father] and
[his counsel] to try and re-establish contact.” It also
observed “[t]his case has been ongoing with no input from
4 The court made the same finding on each day of trial. The Honorable Andrew T. Park presided over the TPR trial.
5 Father had called the family court and asked about the case. Staff advised Father about the next day’s court hearing. The court reappointed his counsel.
3 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
father.” The court pointed out that Father had missed over 29
hearings between November 2017 and April 2021.
Thus, the court concluded Father did not show good cause to
support his motion to set aside the entry of default. See Chen
v. Mah, 146 Hawai‘i 157, 457 P.3d 796 (2020). The court
explained that it “was well grounded in making that
determination in denying father’s motion to set aside his
default after his . . . [over] three years of absence in the
case and his lack of participation in not only the case, in
visitation, or contact with the child, contact with the
department, or services.”
The court granted DHS’s motion and terminated Father’s
parental rights. The court made the necessary findings under
Hawaiʻi Revised Statutes (HRS) § 587A-33(a) (2018). It filed an
order terminating parental rights and letters of permanent
custody on April 5, 2021.
Father appealed. He argues the discharge of counsel
constituted structural error.
The ICA agreed. Because the court had discharged counsel
during the CPA proceedings, the ICA concluded that structural
error happened. The ICA vacated the TPR order and remanded the
case.
We accepted DHS’s and RCGs’ applications for certiorari.
4 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
II.
We hold that Father received a fundamentally fair trial.
This court recently addressed what happens after a court
appoints counsel at the start of Child Protective Act
proceedings and later discharges counsel due to a parent’s
deliberate failure to appear in court. In the Interest of JH,
No. SCWC-XX-XXXXXXX, 2023 WL 2518743 (Haw. Mar. 15, 2023), held
that our case law “do[es] not require automatic reversal for
structural error when an indigent parent is not from start to
finish represented by court-appointed counsel in CPA
proceedings.” Id.
Instead, a fundamental fairness test applies to determine
whether parents received due process before their parental
rights terminated. “There is no violation of a parent’s due
process right to counsel when a family court discharges and
later reappoints counsel, and the case, viewed in its entire
context, establishes that the parent received a fundamentally
fair trial and the family court accurately determined that
parental rights should terminate.” JH, No. SCWC-XX-XXXXXXX,
2023 WL 2518743, at *6.
Here, the court timely appointed Father counsel. After
Father was defaulted for failure to appear, his counsel remained
in the case. Only when Father failed to show at the next
hearing five months later did the court discharge his attorney.
5 *** NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
And once Father contacted the family court after nearly four
years of disinterest and no participation, the court reappointed
his counsel.
When Father resurfaced in the case, the court gave him an
opportunity to set aside his default. Father addressed the
court. Counsel argued on his behalf. Because Father did not
show good cause to support his belated request, the family court
denied his motion and continued the default. The court did not
err. See JH, No. SCWC-XX-XXXXXXX, 2023 WL 2518743, at *5 n.9
(noting that “if a parental rights case nears its end, then a
court may use its discretion - after it provides a parent a fair
process - to refuse a parent’s request to set aside a default”).
Then, before it terminated Father’s parental rights, the
court confirmed compliance with the Child Protective Act. It
found “by clear and convincing evidence that it is not
reasonably foreseeable that . . . father in this case will
become willing and able to provide [JB] with a safe family home,
even with the assistance of a service plan, within a reasonable
period of time.” See HRS § 587A-33(a)(2). The record contains
substantial evidence to support the family court’s HRS § 587A-
33(a) termination of parental rights ruling.
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III.
We reverse the ICA’s judgment on appeal filed on April 12,
2022. The Family Court of the First Circuit’s April 5, 2021
Order Terminating Parental Rights is affirmed.
DATED: Honolulu, Hawai‘i, March 17, 2023.
Francis T. O’Brien /s/ Mark E. Recktenwald (Brett A. Ritter on the briefs) for petitioners Resource /s/ Paula A. Nakayama Caregivers /s/ Sabrina S. McKenna Kellie M. Kersten /s/ Todd W. Eddins (Julio C. Herrera, Patrick A. Pascual, Erin K. Torres on the briefs) for petitioner Department of Human Services
Emily E.M. Hills for Guardian Ad Litem
Clint K. Hamada and Herbert Y. Hamada for respondent