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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-MAR-2023 08:25 AM Dkt. 123 SO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CAAP-XX-XXXXXXX IN THE INTEREST OF JM (FC-S NO. 17-00020)
AND
CAAP-XX-XXXXXXX IN THE INTEREST OF AM (FC-S NO. 17-00023)
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Chan, JJ.)
In these consolidated appeals, Respondent-Appellant
(Mother) appeals from two orders terminating parental rights
entered by the Family Court of the Fifth Circuit, 1 which together
terminated Mother's parental rights as to JM and AM (Children). 2
1 The Honorable Edmund D. Acoba presided.
2 Mother is the natural and legal mother of Children. Children's father (Father) did not appeal the TPR Orders. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Specifically, Mother appeals from: (1) the January 3, 2022
order terminating parental rights as to JM, entered in FC-S
No. 17-00020, which created the appeal in CAAP-XX-XXXXXXX; and
(2) the January 3, 2022 order terminating parental rights as to
AM, entered in FC-S No. 17-00023, which created the appeal in
CAAP-XX-XXXXXXX (collectively, TPR Orders). On January 3, 2022,
the family court entered the same findings of fact and
conclusions of law (FOF/COL) in each proceeding.
On appeal, Mother first challenges FOF 6 under the
"Historical Background-Procedural History" section (Historical),
FOF 22 under the "Concurrent Planning-Order to Show Cause
Hearing" section (Concurrent Planning), and FOF 9, 20, and 21 of
the "Termination of Parental Rights Hearing" section (TPR) of
the FOF/COL. (Formatting altered.) Mother then contends that
the family court abused its discretion by finding that
Petitioner-Appellee Department of Human Services (DHS) made
reasonable efforts to reunify Mother with Children, Mother was
unable to provide Children with a safe family home with the
assistance of a service plan, and the proposed permanent plan
was in Children's best interests.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and arguments advanced, we resolve Mother's
points of error as discussed below, and affirm.
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I. Background
On August 8 and September 29, 2017, DHS filed
petitions for temporary foster custody of Children based on
Mother's inability to provide Children with adequate food,
clothing, supervision, psychological, 3 physical, or medical care.
JM was two years old and AM was one month old when they entered
foster custody on October 5, 2017.
To regain custody of Children, Mother agreed to
complete substance abuse treatment, parenting education, and
individual counseling. Mother greatly progressed on the
services, and DHS reunified Mother and Children under family
supervision on December 24, 2018.
On August 8, 2019, DHS again removed Children from
Mother due to unsanitary living conditions, lack of
participation in services, failure to provide Children adequate
food and water, concerns of drug use, incidents of domestic
violence between Mother and her boyfriend (Boyfriend), including
one in which Boyfriend struck JM, and failure to supervise
Children, including an incident of Children wandering away from
Mother's home without her knowledge. DHS placed Children with
paternal grandmother. On August 21, 2019, the family court re-
awarded foster custody of Children to DHS.
3 DHS' petition regarding AM notes "Mother has not provided her child with . . . psychological . . . care." However, DHS' petition regarding JM does not note a failure to provide psychological care.
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On February 6, 2020, DHS filed, among other things, an
initial permanent plan (Permanent Plan 1), which contemplated
termination of parental rights and permanent placement of
Children with paternal grandmother. On March 6, 2020, the
family court set the matters for a termination of parental
rights hearing, but granted Mother multiple continuances.
During this time, DHS provided Mother with parenting
education and individual counseling services. DHS also
organized supervised visitation between Mother and Children, and
filed periodic safe family home reports, which, among other
things, documented an allegation of sexual abuse by Boyfriend
against JM.
On July 15, 2021, DHS filed an updated permanent plan
reflecting Children's removal from paternal grandmother's home,
placement with resource caregivers (RCGs), and anticipated
permanent placement of Children with RCGs (Permanent Plan 2).
Additionally, DHS filed an updated service plan for Mother,
which listed individual counseling as the sole remaining service
for Mother to complete, but noted that Mother was discharged
from counseling on June 3, 2021.
On July 15, August 26, October 7, and November 7,
2021, the family court held a single termination of parental
rights trial for both proceedings. DHS case manager Lisa Cook
(Cook) testified, in relevant part, that Mother completed
services, however based on her observations, Mother remained 4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
unable to redirect Children's behavior away from dangerous
activities such as running away and hitting, and opined that
Mother could not supervise and protect Children without the
intervention of other parties. Cook also testified that Mother
had been in and out of services for about four years, but was
unable to demonstrate that she could implement skills taught at
services.
Mother's therapist, Orie Lutwin (Lutwin) testified in
relevant part, that Mother completed counseling, reported no
domestic violence by Boyfriend, and mentioned an allegation of
sexual abuse by Boyfriend against JM, however they did not cover
the topic of sexual abuse during therapy. With respect to
domestic violence, Lutwin testified that they covered the topic
of "power and control dynamic in a relationship."
Parent educator Shenella Asuncion (Asuncion) testified
in relevant part, that she taught Mother parenting classes,
which Mother completed, and did one-on-one parenting support
with Mother. Asuncion also testified that Mother told her
domestic violence was not an issue, and based on her
interactions with Mother, Asuncion was under the impression that
Mother was not in a romantic relationship. Asuncion stated she
did not address protecting Children from sexual abuse with
Mother.
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Mother testified in relevant part, that there was no
domestic violence in her relationship with Boyfriend, she did
not discuss domestic violence with Lutwin because she felt it
was a "done issue," and she did not bring up domestic violence
incidents with Asuncion. Mother did not testify regarding
allegations of sexual abuse by Boyfriend against JM.
After considering the evidence and arguments
presented, the family court terminated Mother's and Father's
parental rights.
II. Standards of Review
"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) (internal
quotation marks omitted) (quoting In re Doe, 84 Hawai‘i 41, 46,
928 P.2d 883, 888 (1996)).
We review the family court's FOF for clear error. In
re Doe, 95 Hawai‘i 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 evidence' is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion."
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Id. (citations and ellipsis omitted). Unchallenged findings of
fact are binding on appeal. In re Doe, 99 Hawai‘i 522, 538, 57
P.3d 447, 463 (2002).
III. Discussion
(1) In her first point of error, Mother claims that
Historical FOF 6, Concurrent Planning FOF 22, and TPR FOF 9, 20,
and 21 are clearly erroneous. We address each in turn.
Mother argues that Historical FOF 6 is clearly
erroneous because "[t]o the extent an issue exists as to whether
Mother is able to adequately supervise her Children and protect
them from dangerous situations, it exists because Mother was not
afforded an opportunity by the DHS to resolve it." Historical
FOF 6 states:
6. The Court finds that the issue is whether mother is able to adequately supervise her children and to recognize and protect them from dangerous situations, including future harm or threat of harm.
As a threshold matter, Mother's argument fails to
demonstrate that Historical FOF 6 is clearly erroneous because
she purports to explain the reason for the factual finding,
rather than demonstrate it is in error.
In any event, Historical FOF 6 is supported by
Historical FOF 7-9 and TPR FOF 13, 4 which corroborate DHS'
4 Historical FOF 7-9 state: 7. The Court finds the GAL in her report filed July 14, 2021 noted concerns about mother's ability to supervise the children. (continued . . .)
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concerns about Mother's ability to supervise and protect
Children. Additionally, the record reflects that DHS raised
inadequate supervision and protection of Children as initial
safety concerns, re-emergence of these safety concerns caused
DHS to remove Children again on August 8, 2019, and these safety
concerns remained unresolved throughout the remaining
proceedings. Thus, substantial evidence supports Historical FOF
6, and we are not left with a definite and firm conviction that
a mistake has been made.
Mother argues that Concurrent Planning FOF 22 is
clearly erroneous because Mother made significant progress on
her service plan prior to March 29, 2018. Concurrent Planning
FOF 22 states:
22. At the review hearing on March 29, 2018, Parents had made little progress and the matter was scheduled for Order to Show Cause Hearing on June 7, 2018, to determine whether the matter should be set for termination of parental rights. (Order Continuing Foster Custody of [JM] filed on April 12, 2018).
(. . . continued)
8. The Court further finds that the DHS warned mother to not allow [Boyfriend] to have access to the children because of [JM]'s allegation [Boyfriend] sexually abused her.
9. The Court finds that despite DHS' warnings to mother, mother added [Boyfriend] to her residential lease as a co-tenant.
TPR FOF 13 states: "On August 26, 2021, Ms. Cook testified that she spoke to [Mother] about [Boyfriend] sexually abusing [JM], and the very next day, [Boyfriend] was added as a co-tenant to Mother's residential lease."
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The record reflects that, on March 29, 2018, the
family court recognized Mother made some progress on the service
plan, but declined to find that she made sufficient progress on
the service plan given Children's young age, and scheduled an
order to show cause hearing. Thus, the record contains
substantial evidence to support the "little progress" finding in
Concurrent Planning FOF 22, and we are not left with a definite
and firm conviction that a mistake has been made.
Mother argues TPR FOF 9 is clearly erroneous because
DHS did not provide Mother the opportunity to "show that she had
achieved the ability to react quickly to the needs of her
Children." TPR FOF 9 states:
9. Despite individual counseling being ordered in the Family Service Plan, [Mother] never achieved the ability to react quickly to the needs of her children, and therefore visits continue to be supervised four years later because Mother's ability to supervise the children is an ongoing safety issue.
Mother, however, fails to demonstrate that TPR FOF 9
is clearly erroneous. At best, Mother purports to explain the
reason for the factual finding, rather than demonstrate it is in
error. In any event, substantial evidence supports TPR FOF 9,
and we are not left with a definite and firm conviction that a
mistake has been made. Therefore, TPR FOF 9 is not clearly
erroneous.
Mother argues that TPR FOF 20 is clearly erroneous
because some visitation observation notes show that Children
listen to her directions. Additionally, Mother argues that the 9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
quoted language in TPR FOF 20 does not show that she is unable
to manage Children. TPR FOF 20 states:
20. After three years of supervised visitation, parent education, hands on coaching during the visits, and individual counseling, the children continue to run away from Mother, and do not follow her instructions, "When [JM] was on the playground [JM] jumped from the top of the slide down to the ground while mom stood watching the girls play. Then [JM] climbed once again to the top of the slide and the worker told [JM] to get down because it's dangerous. [JM] listened to the worker."
Mother correctly asserts that some visitation notes
reflect Children listening to Mother's instructions.
Additionally, Mother correctly asserts that the quoted language
in TPR FOF 20 does not support a finding that Children do not
follow Mother's instructions. This being said, the record
confirms that Children running away from Mother remained a
recurring safety issue. Even if TPR FOF 20 is clearly erroneous
in part, the error is harmless because it does not undermine the
reason upon which the family court terminated Mother's parental
rights, namely Mother's inability to adequately supervise and
protect Children, which is supported by the record. See
discussion of Historical FOF 6 supra at 7-8. As such, to the
extent TPR FOF 20 is erroneous, it does not provide a ground to
vacate the TPR Orders. Hawai‘i Family Court Rules (HFCR) Rule 61
("No . . . error or defect in any . . . order or in anything
done or omitted by the court . . . is ground for . . . vacating,
modifying, or otherwise disturbing a judgment or order, unless
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refusal to take such action appears to the court inconsistent
with substantial justice").
Mother argues TPR FOF 21 is clearly erroneous because
she completed individual counseling. TPR FOF 21 states:
21. Individual Counseling was ordered for Mother in the Order Continuing Foster Custody, dated July 15, 2021, it is the remaining and outstanding Service Plan item for Mother.
The record reflects that Lutwin discharged Mother from
counseling on June 3, 2021. Additionally, Cook testified that
Mother completed services. As such, the record lacks
substantial evidence to support TPR FOF 21 and it is thus
clearly erroneous. This error, however, is harmless because the
family court recognized that Mother substantially complied with
the service plan, but nonetheless concluded based on the court's
findings that Mother was unable to provide Children with a safe
family home. As such, TPR FOF 21 does not provide a ground to
vacate the TPR Orders. HFCR Rule 61.
(2) In her second point of error, Mother claims the
family court abused its discretion by finding that "DHS made
reasonable efforts to finalize the initial permanency plan,
which was reunification." Mother identifies the July 20, 2021
orders continuing DHS foster custody over Children (Foster
Custody Orders) as the source of this point of error, and cites
to HFCR Rule 46 as the basis for her ability to appeal the
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Foster Custody Orders. 5 Mother argues that, after DHS re-assumed
foster custody of Children, DHS failed to offer her domestic
violence and sexual abuse services, and failed to provide her
opportunities to apply skills learned from services, therefore
DHS failed to provide reasonable reunification efforts.
As an initial matter, HFCR Rule 46 is inapplicable
because Mother had the opportunity to object to the family
court's "reasonable efforts" findings at the July 15, 2021
hearing or by appealing from the Foster Custody Orders, but
failed to do so. In re Doe, 77 Hawai‘i 109, 114-15, 883 P.2d 30,
35-36 (1994) (allowing immediate appeal of family court
decisions that impact custody over a child); Rules Expediting
Child Protective Appeals Rule 3 (setting forth a fifteen-day
deadline to appeal appealable orders, or allowing appeal within
thirty-days with a showing of good cause as per appellate
rules).
In any event, the record in this case reflects that
DHS provided Mother reasonable opportunities to reunify with
5 HFCR Rule 46 provides: Formal exceptions to rulings or orders of court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action that the party desires the court to take or the party's objection to the action of the court and grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party. (Emphasis added.)
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Children. The record also indicates Mother was unable to
demonstrate that she could apply what she learned from the
services provided and declined to discuss domestic violence with
Lutwin and Asuncion. Based on this record, we cannot say that
the Family Court abused its discretion.
(3) In her third point of error, Mother claims the
family court abused its discretion by finding that Mother was
unable to provide Children a safe family home. Mother
identifies Historical FOF 1 and 2 6 and the TPR Orders as the
basis for this point of error. Mother argues Historical FOF 1
and 2 are clearly erroneous because DHS failed to provide her
the opportunity to demonstrate her ability to provide a safe
family home.
Mother purports to explain the reason for the factual
findings, rather than demonstrate they are in error. The record
reflects that DHS provided Mother with reasonable opportunities
6 Historical FOF 1 and 2 state: 1. Having considered the testimony presented, the records and files herein, and the written closing arguments submitted by Mr. Goo, Mrs. Meyers, and Mr. Morimoto this Court finds by clear and convincing evidence that mother, . . . , and father, . . . , are not willing and able to provide a safe family home for their two children, . . . , even with the assistance of a service plan.
2. This Court further finds by clear and convincing evidence that it is not reasonably foreseeable that the parents will become willing and able to provide the children with a safe home, even with the assistance of a service plan within a reasonable period of time.
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to reunify with Children. Therefore, we cannot say that the
court abused its discretion in regards to this point.
(4) Finally, in her fourth point of error, Mother
claims the family court abused its discretion by finding that
Permanent Plan 2 was in Children's best interests. Mother
argues that Permanent Plan 2 falsely states that DHS "continued
to provide a service plan and referrals as needed[,]" and the
safety issues DHS identified in 2017 remained unresolved.
Additionally, Mother alleges DHS failed to consider placing
Children with her parents.
Here, evidence of services, safety issues, and
placement with maternal grandparents were before the family
court. In 2017, JM was two years old and AM was one month old
when they entered foster custody. Due to Mother's progression
with services, DHS reunified Mother and Children under family
supervision in 2018. But, in 2019, DHS removed Children because
of unsanitary living conditions, failure to provide Children
adequate food and water, failure to supervise Children
(including an incident of Children wandering away from Mother's
home without her knowledge), incidents of domestic violence
between Mother and Boyfriend (including one in which Boyfriend
struck JM), concerns of drug use, and lack of participation in
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The January 9, 2020 safe family home report stated
among other things:
[Mother] is believed to be sober. She completed one urine test just after the children were removed in August. The UA was negative for all substances. The DHS concerns were that [Mother's] behaviors regarding the children may have been related to her having relapsed but it appears this is not the case. Her inability to follow through with scheduling medical appointments, cleaning the house to the point where it was at least sanitary, and her relationship with a violent partner were decisions she made while sober. The children were often unsupervised in the neighborhood while [Mother] was sober.
The report also noted Boyfriend transported Mother to and from
supervised visits with Children and remained in his car during
the visits, Mother's visits were often shorter than the time
allowed, Mother was late for visits with Children, and JM
reported being sexually abused by Boyfriend. DHS warned Mother
not to allow Boyfriend to have access to JM due to allegations
of sexual abuse, but Mother added Boyfriend to her residential
lease as a co-tenant.
Moreover, when JM was residing with maternal
grandparents pursuant to a safety plan, Mother violated the
safety plan by resuming care of JM. And after AM was born,
police officers "stated they did not feel the Maternal
Grandparent's home would be a suitable environment for an
infant[,]" as police "frequently responded to incidents at this
home."
Based on the record in this case, we cannot say the
family court was clearly erroneous in concluding that the
"proposed permanent plan of termination of parental rights and 15 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
the goal for children [to be] placed for adoption is in the best
interest of the children."
IV. Conclusion
For the reasons discussed above, we affirm the family
court's (1) January 3, 2022 order terminating parental rights as
to JM, entered in FC-S No. 17-00020, and (2) January 3, 2022
order terminating parental rights as to AM, entered in FC-S
No. 17-00023.
DATED: Honolulu, Hawai‘i, March 31, 2023
On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Casey M. Hutnick, for Mother-Appellant. /s/ Sonja M.P. McCullen Associate Judge Russell K. Goo, Patrick A. Pascual, /s/ Derrick H.M. Chan Regina Anne M. Shimada, and Associate Judge Julio C. Herrera, Deputy Attorneys General, for Petitioner-Appellee.