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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 13-FEB-2025 09:54 AM Dkt. 61 AMOP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
IN THE INTEREST OF THE P CHILDREN
SCWC-XX-XXXXXXX
CERTIOARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; FC-S NO. 19-1-0083 and FC-S NO. 19-1-0084)
FEBRUARY 13, 2025
RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ., AND CIRCUIT JUDGE NAKAMOTO IN PLACE OF GINOZA, J., RECUSED; AND DEVENS, J., DISSENTING
AMENDED OPINION OF THE COURT BY EDDINS, J.
This case concerns when lack of counsel constitutes
structural error, and thereby invalidates fundamentally fair
Child Protective Act proceedings that serve a child’s best
interest.
We hold that there is no structural error when the family
court does not provide counsel to an indigent parent who absents *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
themself from the case’s initial proceedings and neglects the
court’s process for appointing counsel.
Because we find no structural error, and this years-long
parental rights termination case was fundamentally fair, we
affirm the family court’s order that revoked foster custody,
granted permanent custody of the children to DHS, and ordered
the permanent plan of adoption by the children’s adult half-
sister.
I.
In May 2017, Appellee-Mother (Mother) gave birth to a
daughter, Taylor (to protect the minor’s privacy, we use a
pseudonym). Both Taylor and Mother tested positive for opiates
and methamphetamines. The hospital notified the Department of
Human Services about a threat of abuse and neglect. See Hawai‘i
Revised Statutes (HRS) § 350-1.1 (2015).
At the time, Father was incarcerated and Mother on felony
probation. They never married.
In April 2019, Mother and Father had another daughter,
Jordan (again, a pseudonym). Mother disclosed that she took
suboxone (an opiate withdrawal medication) during her pregnancy.
Medical personnel monitored Jordan for withdrawal symptoms.
Like before, the hospital notified DHS of a threat of abuse and
neglect.
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On June 6, 2019, DHS filed a “Petition for Family
Supervision” in the Family Court of the Second Circuit. HRS
§ 587A-12 (2018). DHS served Mother and Father with a summons
to appear in family court on June 21, 2019. HRS § 587A-12(c)(2)
(“The court shall conduct[] [a] return hearing[] . . . within
fifteen days after the petition is filed”). The family court
also appointed a Guardian Ad Litem (GAL) for the girls. HRS
§ 587A-16(a) (2018). Both the GAL and DHS social worker
submitted reports throughout the case. Id.; HRS § 587A-18
(2018).
Neither parent showed up at the June 21, 2019 hearing. The
family court granted DHS’ oral motion for temporary foster
custody. See HRS § 587A-26 (2018). “‘Temporary foster custody’
means a legal status created under this chapter with or without
a court order, whereby the department temporarily assumes the
duties and rights of a foster custodian of a child.” HRS
§ 587A-4 (2018). The court set a return hearing for July 2,
2019. HRS § 587A-28 (2018) (“When a petition has been filed,
the court shall conduct a return hearing within fifteen days
of[] . . . [t]he date a decision is announced by the court
during a temporary foster custody hearing.”).
Mother appeared at the return hearing. The family court
took no substantive action. It continued temporary foster
custody. Per the court minutes, the court scheduled a “Return
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Hearing w/ Counsel” in two weeks. Because the record on appeal
lacks transcripts for the case’s initial proceedings, it is
unclear whether the court directed Mother to return to court
after completing the second circuit’s one-page application for
court-appointed counsel, or instructed her to return to court
with retained counsel.
Mother missed the return hearing on July 16, 2019. Based
on the DHS social worker’s testimony, the family court granted
DHS foster custody. HRS § 587A-15 (2018). The court found that
the children’s “physical/psychological health/welfare has been
harmed or is subject to threatened harm by the acts or omissions
of mother and father, to-wit; threatened harm due to substance
abuse that lead[s] to impaired parenting.” See HRS § 587A-7
Mother disengaged from the case. Father too. Parental
disengagement, the parties agree, is not an uncommon feature of
chapter 587A proceedings. Still, parents frequently re-engage.
About four months later, on November 5, 2019, Mother
appeared in court. Nothing substantive happened. Like before,
the court minutes reflect that the court scheduled a “Return
Hearing w/ Counsel.” Again, it is unclear whether the court
advised Mother to fill out an application for court-appointed
counsel. But we believe that the court was acquainted with the
Family Court of the Second Circuit’s standard indigency form and
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understood HRS § 587A-17(a) (2018) (“The court may appoint an
attorney to represent a legal parent who is indigent based on
court-established guidelines.”); HRS § 587A-25(d) (2018) (“If a
party is without counsel or a guardian ad litem, the court shall
inform the party of the right to be represented by counsel and
the right to appeal.”); and HRS § 571-8.5(a)(8) (2018) (“The
district family judges may: . . . Appoint . . . attorneys to
represent parties in accordance with law”).
That same day, after court, Mother applied for counsel.
One week later, on November 12, the court appointed her counsel.
Mother did not make the return hearing on November 26,
2019. But counsel appeared. The court continued all prior
orders. Then, on December 3, 2019, Mother made it to court.
Again, counsel appeared. With counsel’s aid, Mother agreed to
DHS’ service plan. See HRS § 587A-27 (2018). Per the plan, she
entered drug treatment.
Thereafter, Mother engaged in the case and appeared at all
court hearings side-by-side with an attorney. Mother had a
lawyer to the case’s end – nearly three years later.
As Mother’s case progressed, she appeared on the surface to
do well, complying with the service plans. After a year of DHS
foster custody, the court entered a family supervision order.
See HRS § 587A-4 (“Family supervision” is “the legal status in
which a child’s legal custodian is willing and able, with the
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assistance of a service plan, to provide the child with a safe
family home.”). The children reunited with Mother.
For almost one year, the children and Mother lived
together. First in a drug treatment program for woman with
children. Then with the girls’ adult half-sister on Oʻahu. And
eventually with Father in a 20-foot trailer next to a home in
Wailuku that Mother’s father owned.
Family supervision proved unworkable. Because of abuse and
neglect concerns, and Mother’s drug use, in June 2021, DHS asked
the court to revoke family supervision and reinstate DHS foster
custody. See HRS §§ 587A-7 and 587A-15(a)(2) (2018). DHS
reported that the two girls were developmentally maladjusted and
physically aggressive. Both the DHS social worker and GAL
described the girls as “feral.” The DHS social worker informed
the court that a good Samaritan had found four year-old Taylor
running unattended on a street blocks from where they lived.
Mother also deceived DHS about her drug use and treatment
efforts. DHS reported that Mother continued to use unlawful
drugs, refused to drug test when asked, and despite saying she
regularly attended drug treatment, no-showed for virtually every
treatment session. DHS concluded “the children are not safe in
[her] care.”
After a status hearing on June 29, 2021, attended by Mother
and her counsel, the family court revoked family supervision.
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HRS § 587A-15(a)(2). DHS again took custody of the children.
DHS then placed the girls on Oʻahu with their paternal half-
sister. HRS § 587A-15(b)(2). Since June 30, 2021, the children
have lived there, under their sister’s care.
Nearly three months after the children re-entered foster
custody, the GAL reported that they were happy in their sister’s
home. They bonded well with her. Taylor, in particular,
displayed noticeable improvement in her social interactions and
behavior. The girls enjoyed pre-school and adjusted nicely to
the structure their half-sister had established.
In October 2021, Mother agreed to her fifth service plan.
The plan, like the others, required Mother to complete substance
abuse treatment.
By March 2022, both the GAL and DHS social worker reported
that the girls were “doing exceedingly well.” The DHS social
worker had previously reported that the girls kicked and hit
her, but now she said, they were well-mannered. Their speech
improved. They lived in a clean home. The girls greatly
benefitted from a stable home life with an “extremely devoted”
caretaker. They were “thriving.”
In May 2022, DHS moved to terminate parental rights (TPR).
HRS §§ 587A-4, 587A-32 (2018), and 587A-33 (2018). DHS had
filed the petition for family supervision almost three years
earlier, and the girls’ time in foster custody totaled 21
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months. The DHS social worker submitted a permanent plan
recommending adoption by the half-sister. HRS § 587A-32(a)(1)
(“The permanent plan shall[] . . . [s]tate whether the
permanency goal for the child will be achieved through adoption,
legal guardianship, or permanent custody.”).
The court set a TPR trial date. Shortly before trial,
Mother’s counsel moved to withdraw. Counsel declared their
relationship “irreparable.” The court granted the motion and
appointed Mother new counsel. On September 23, 2022, the family
court held a trial. Mother and Father both appeared with their
own counsel.
DHS had the burden of proof. HRS § 587A-33. It presented
evidence that the children’s living conditions with Mother were
unsafe. DHS recounted, among other events, the incident where
residents found Taylor running down the street blocks from the
home. A psychological evaluation revealed that Taylor felt
lingering fear due to Mother leaving her alone in the trailer.
Testimony also centered on the girls’ behavioral issues under
Mother’s care – they were described as “out of control” - and
how it reflected neglectful parenting. DHS introduced evidence
about Mother’s drug use, deception, failed treatment efforts,
and her inability to follow the service plans. And DHS
presented substantial evidence regarding the girls’ positive
transformation while in their sister’s care.
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The family court terminated Mother’s and Father’s parental
rights. It found that 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. HRS § 587A-33(a)(1)-(2). The
court ruled that DHS’ permanent plan with the goal of adoption
by the girls’ half-sister served the best interest of the
children. HRS § 587A-33(a)(3).
One month after the family court’s order terminating
parental rights, Mother’s trial counsel moved to withdraw,
saying Mother was unsatisfied with his representation. That
same day, Mother’s new lawyer filed a notice of appeal in the
ICA. Later, the court granted her trial lawyer’s motion to
withdraw. (The procedural and jurisdictional issues surrounding
the switch in lawyers have no consequence here.)
Mother appealed. Father did not. Mother raised two
issues. First, she argued (for the first time) that the family
court erred by appointing the GAL because the GAL had previously
represented Mother in a different matter. Second, she argued
that the family court committed structural error by failing to
appoint her new counsel after granting her trial counsel’s post-
trial motion to withdraw. Mother said she could not preserve
the guardian ad litem issue because “she was stuck with an
attorney” who disagreed with her, “and she was not appointed
another attorney after he was discharged.”
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DHS responded that Mother’s first point of error lacked
merit because she did not raise it in the family court. DHS
also maintained that no structural error occurred. The family
court did not appoint Mother new counsel because she had already
hired someone. Mother was never without counsel after the
trial.
The ICA ordered supplemental briefing. It wanted the
parties to examine “whether appointment of counsel for Mother
was timely.”
In a memorandum opinion, the ICA held that the failure to
immediately appoint counsel constituted structural error: “the
Family Court’s failure to appoint Mother counsel for 144 days,
between June 21, 2019 (when temporary foster custody was
requested and granted) to November 12, 2019 (when counsel was
appointed) was structural error which requires vacatur of orders
affecting custody of the Children from June 21, 2019.” The ICA
did not address Mother’s argument about the GAL’s putative
conflict.
The ICA’s opinion invalidated all custody orders affecting
the best interest of the children. The CPA proceedings had to
start over.
The GAL applied for cert. The Department of Human Services
joined the application. We accepted cert.
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II.
In Hawaiʻi, “parents have a substantive liberty interest in
the care, custody, and control of their children.” In re Doe,
99 Hawaiʻi 522, 533, 57 P.3d 447, 458 (2002). To support that
fundamental right, the Hawaiʻi Constitution’s due process clause,
article I, section 5, confers parents a right to counsel in
Child Protective Act proceedings. In re T.M., 131 Hawaiʻi 419,
421, 319 P.3d 338, 340 (2014). “[C]ourts must appoint counsel
for indigent parents once DHS files a petition to assert foster
custody over a child.” Id.
What if the court does not? In re L.I. introduced
structural error – an error that upsets the integrity of the
judicial process - to CPA proceedings. 149 Hawaiʻi 118, 122, 482
P.3d 1079, 1083 (2021). Because of the constitutionally
protected liberty interest at stake, once parental rights are
substantially affected, the family court should provide counsel
to an indigent parent. Id. Otherwise, structural error
results. And thus, despite a fundamentally fair, error-free
process that serves a child’s best interest, the case starts
over. (L.I was published after DHS filed a petition for family
supervision in the present case.)
T.M. and L.I. involved cases where a structural error
solution was evident.
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In T.M., all the parties except T.M.’s 15 year-old mother
had counsel throughout the case. 131 Hawai‘i at 422, 319 P.3d at
341. The young mother actively engaged with the case from the
very start. Yet 19 months passed between her child’s placement
in foster custody and the court’s appointment of counsel to
protect her interests. Id. at 433, 319 P.3d at 352. She later
lost her right to parent. Id. at 429, 319 P.3d at 348.
This court disapproved. We didn’t adopt structural error
then. But we ruled that no matter what, the mother did not
receive a constitutionally sound process. She lacked a lawyer
“to inform her of the limitations of the guardianship approach
and of the possibility that if other options were pursued, her
parental rights would be in jeopardy”; “advise her of
significant deadlines” (like the two-year cutoff to provide a
safe family home); or provide “necessary assistance to prepare
for the . . . termination hearing.” Id. at 432-33, 319 P.3d at
351-52. Had mother received counsel sooner, this court said,
there’s a chance she would’ve followed the family service plan’s
terms and provided T.M. with a safe family home at an earlier
date. Id. at 433, 319 P.3d at 352.
L.I. also had clear-cut structural flaws. There, the
family court appointed the mother counsel three months after the
court awarded DHS foster care, and 10 months after DHS’ initial
petition for family supervision. 149 Hawaiʻi at 119-20, 482 P.3d
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at 1080-81. During that time, the mother had engaged with the
case. She participated in court hearings, consented to family
supervision, and agreed to two service plans. Id. Yet she had
no lawyer to help navigate family court and chapter 587A’s
demands.
L.I. directed family courts to appoint counsel for indigent
parents when DHS files a petition for family supervision
because, at that point, parental rights are substantially
affected. Id. The failure to do so, this court ruled, amounts
to structural error, requiring automatic vacatur of best
interest findings without having to show harmful error. Id. at
123, 482 P.3d at 1084.
The T.M. and L.I. mothers approached their chapter 587A
cases in the same way. They were involved from the first
hearing. The mothers actively engaged in the case before
receiving counsel. T.M.’s mother participated in an ʻohana
conference, and she agreed to two HRS § 587A-27 family service
plans. T.M., 131 Hawaiʻi at 423-24, 426, 319 P.3d at 342-43,
345. As for L.I.’s mother, she consented to family supervision
and also agreed to two service plans over a ten month period.
L.I., 149 Hawaiʻi at 119-20, 482 P.3d at 1080-81. Both mothers
attended every court hearing. Despite their engagement, the
family court did not offer them court-appointed counsel. As the
government worked to strip the mothers’ parental rights, they
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fended for themselves. We remanded both cases for new
proceedings.
Last year, In re JH tacked from a “no questions asked”
structural error approach in CPA right to counsel cases. 152
Hawaiʻi 373, 526 P.3d 350 (2023). “[W]hen, how long, and the
reason” a parent goes without counsel matter when it comes to
assessing whether structural error nullifies best interest
determinations. Id. at 379, 526 P.3d at 356.
In JH, the parents appeared at the first hearing and were
appointed counsel. Id. at 377, 526 P.3d at 354. But the
parents didn’t show for the next hearing. Id. So the court
discharged counsel. Id. Five months later, the parents
reappeared. Then counsel represented them to the end, including
a TPR trial. Id. JH held that counsel’s absence during CPA
proceedings does not always vacate best interest findings. Id.
at 376, 526 P.3d at 353. There are limits to the right to
counsel in parental termination cases. JH clarified that an
indigent parent’s constitutional right to counsel “is not
automatically violated when a beneficiary of that right
voluntarily absents themself from family court proceedings.”
Id. at 379, 526 P.3d at 356.
JH pointed out that neither T.M. nor L.I. required reversal
for structural error when an indigent parent is not from start
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to finish represented by court-appointed counsel in CPA
proceedings. Id. at 378, 526 P.3d at 355.
Automatic reversal of best interest findings due to a
parent’s voluntary absence undercuts the paramount principle
controlling chapter 587A proceedings – a fair resolution that
serves the best interest of the child. For sure, the family
court must protect a parent’s constitutional right to parent
their child. And the family court must honor a parent’s
constitutional right to counsel. But if an appellate court
robotically vacates best interest findings, “then the time it
takes to permanently place a child drags on.” Id. at 379, 526
P.3d at 356. JH talked about structural error’s downside. The
child may suffer. And it’s the child’s best interest that
steers a chapter 587A case. We repeated that it is “in the
child’s best interest and overall well being to limit the
potential for years of litigation and instability.” Id. (citing
In re RGB, 123 Hawaiʻi 1, 26, 229 P.3d 1066, 1091 (2010)).
JH held that a gap in legal representation due to a
parent’s voluntary absence did not – considering everything -
warrant unravelling the proceedings and vacating an order
terminating parental rights. See 152 Hawaiʻi at 379, 526 P.3d at
356. We declined to apply structural error to cases involving
discharged counsel because structural error is inflexible and
ignores the practicalities of the situation. Id.
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Thus, JH established that there is no structural error
after a family court discharges counsel, and then later re-
appoints counsel in CPA proceedings. Id. at 380, 526 P.3d at
357. So long as the parent receives a fundamentally fair
procedure, a best interest determination that results in a
termination of parental rights will go undisturbed. Id.
Due process was satisfied in JH. Id. at 381, 526 P.3d at
358. No hearings happened between the five-month gap between
when the parents voluntary absented themselves and then re-
engaged in the proceedings. Id. When the parents reappeared
and re-engaged, so did counsel. Id. After that, counsel
represented the parents until the end of the TPR trial. In all,
the parents were represented for 22 of 27 months. Id. Since
there was no structural error, we examined the trial.
Substantial evidence supported the family court’s HRS § 587A-
33(a) termination of parental rights findings. Id.
In the present case, the family court did not appoint
counsel for Mother at the initial proceedings. But it was
Mother’s failure to show up in court and follow the court’s
process that foiled legal representation. Once Mother appeared,
completed an application for court-appointed counsel, and
engaged, she received legal representation. Thereafter, counsel
represented Mother for 34 uninterrupted months. Further, the
record shows that after Mother received counsel, she had
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opportunities to reunite with her children before the family
court terminated her parental rights.
The delay in receiving counsel did not harm Mother’s case.
Had the court provided the absent Mother a lawyer during the
initial hearing, what would that attorney have done? See JH,
152 Hawaiʻi at 380, 526 P.3d at 357 (“If a parent chooses not to
appear in court or decides not to communicate with counsel, then
counsel is hard-pressed to understand the parent’s present
objectives, and is challenged to provide sound, ethical
representation.”). The dissent says that counsel may
“immediately contact and appropriately advise the parent.” If
contact and the attorney-client relationship are established,
then counsel would likely communicate the value of
participation. But at this stage, we do not believe that lack
of counsel upsets a “trial’s entire framework, its structure.”
JH, 152 Hawaiʻi at 379, 526 P.3d at 356.
An unbending structural error approach unfairly benefits a
voluntarily absent parent at the expense of their child. “A
parent’s choice not to appear in court or maintain contact with
counsel should not undermine a child’s interests in permanency.”
Id. Because the best interest of the child are foremost, a
family court cannot simply freeze the case to await the
emergence of a disinterested parent and that parent’s compliance
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with the court’s process for appointing counsel. See HRS
§ 587A-2 (2018).
The dissent’s position may create situations where the best
interests of the child are waylaid by structural error’s
rigidity. Consider a parent who did not appear in court until
the last day of a TPR trial. If the court did not appoint
counsel for that parent at the case’s initiation, then
structural error applies, and there is no harmlessness review.
Therefore, each best interest finding gets vacated, and the
court must re-start the proceedings, thereby upending the
child’s interest in permanency.
We hold that a parent’s constitutional right to counsel is
not invoked for structural error purposes until they appear and
engage in the case, which includes complying with the court’s
process for determining indigency.
A. Mother Received a Fundamentally Fair Proceeding
When the government uses its power to untie the parent-
child relationship, article I, section 5 of our state
constitution demands a fundamentally fair process.
But here, the ICA gave “no attention to whether the
proceedings [after Mother received counsel] were fundamentally
fair.” JH, 152 Hawaiʻi at 379, 526 P.3d at 356. The ICA applied
structural error, thereby invalidating the family court’s
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findings and conclusions advancing the best interest of the
children.
Mother’s decision to disengage did not trigger structural
error. She absented herself for almost the first five months of
the case. Once on track, however, Mother had legal
representation at every hearing, including the TPR trial.
Mother had a “meaningful opportunity to participate in [her]
case with the aid of counsel.” Id. at 381, 526 P.3d at 358.
After Mother received counsel, DHS and the family court gave her
time to get on her feet. She attended drug treatment and
parenting classes. The family court granted her family
supervision. She had the opportunity to reunite with the
children, something she didn’t have when she neglected the first
several months of the case.
The service plans, the court later found, gave Mother the
best chance at “remedying the problems which put the Children at
substantial risk of being harmed in the family home.” Within
two weeks of being appointed counsel, Mother committed to her
first service plan. Throughout the case, Mother agreed with and
committed to five service plans, all with the aid of counsel.
After six months of participating in a drug treatment
program, Mother showed she was willing and able to provide the
children with a safe family home. See HRS § 587A-4. The family
court credited her efforts by granting family supervision. Then
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with counsel’s help, Mother seemingly complied with the terms of
the various plans and provided the children with a safe family
home. Compare T.M., 131 Hawaiʻi at 433, 319 P.3d at 352 (“It may
be that had counsel been appointed sooner, Petitioner may have
been able to comply with the terms of the family plan and
provided T.M. with a safe family home at an earlier date.”).
But even with counsel’s assistance and the service plans, Mother
struggled. The family court revoked family supervision after
nearly a year.
The court found that “Mother and the Father were given
every reasonable opportunity to complete their services and
effectuate positive changes to enable them to provide a safe
family home with the assistance of a service plan in order to be
reunified with the Children.” Mother tried. But unfortunately,
she could not comply.
Some parents in Chapter 587A proceedings suffer from
substance use disorders. Substance use disorders are “patterns
of substance use that cause damage to physical or mental health
or lead to clinically significant functional impairment or
distress.” Nora D. Volkow & Carlos Blanco, Substance Use
Disorders: A Comprehensive Update of Classification,
Epidemiology, Neurobiology, Clinical Aspects, Treatment and
Prevention, 22 World Psychiatry 203, 204 (2023) (footnote
omitted)
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https://onlinelibrary.wiley.com/doi/epdf/10.1002/wps.21073
[https://perma.cc/7JN6-Z3ZT]. In Hawai‘i, it is estimated that
each year “500-650 children (about half of confirmed cases of
child abuse or neglect) are at high risk of entering foster care
because of their parent’s substance use disorder.” Yoko Toyama
Calistro & Karen Worthington, Strategies to Help CWS-Involved
Parents Complete Substance Use Treatment and Protect their
Children in Hawai‘i, 81 Haw. J. Health & Soc. Welfare, 37, 37
(2022)
https://pmc.ncbi.nlm.nih.gov/articles/PMC9783818/pdf/hjhsw8112_S
3_0037.pdf [https://perma.cc/76E8-D3FK]. From 2016 to 2020,
parental alcohol and drug use contributed to about half of the
child abuse and neglect cases. Id.
Mothers and fathers struggling with substance use may still
satisfactorily parent their children. They may, in fact, be
really good parents. “Parental substance use or SUD does not by
itself constitute [child abuse and neglect].” Id. Rather,
“[child abuse and neglect] occurs when . . . children’s needs
are not met because of the parent’s use of substances.” Id.
We are mindful that HRS § 587A-7(a)(7) includes “history of
substance abuse by the child’s family” as a factor to consider
“when determining whether a child’s family is willing and able
to provide the child with a safe family home.” But we stress
that a parent’s substance use, unaccompanied by evidence
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relating to HRS § 587A-7(a)(1) or other HRS § 587A-7 safe family
home factors, does not support the loss of parental rights.
Mother does not argue on appeal that her case was
fundamentally unfair. Or that there was not substantial
evidence to support terminating her parental rights. The family
court cited the witnesses’ testimony and the exhibits (reports
from GAL and the DHS social worker) for support. The court
found that Mother was willing, but ultimately unable to provide
the children with a safe family home now or in the future, even
with a service plan. See HRS § 587A-33(a)(1), (2). The court
concluded that the children were thriving in their sister’s
care. And there was “clear and convincing evidence that it
[was] in their best interest to remain where they are and be
adopted and for the parental rights to be terminated.” See HRS
§ 587A-33(a)(1), (2). Mother does not challenge the family
court’s best interest findings.
B. Appointing Counsel in CPA Proceedings
The family court’s decision to forego an early indigency
determination troubles us. At the start, Mother appeared in
court for two hearings. She didn’t make back-to-back
appearances, but when she showed, the court had an easy
opportunity to make an indigency finding and appoint counsel.
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During oral argument, the parties disagreed on most things.
They agreed though that CPA cases overwhelmingly involve
indigent parents.
To fortify the right to counsel and (ideally) decrease
representation-related appeals that may undo best interest
findings, we direct family courts to make an indigency
determination at a parent’s first appearance in a chapter 587A
proceeding that substantially affects parental rights. HRS
§ 602-4 (2016).
Courts may make this indigency finding after an on-the-
record colloquy covering financial status. Or courts may on-
the-spot have a parent complete a standard application for
counsel form. (Like the simple form Mother eventually filled
out, or the “application for court-appointed counsel” form used
by the third circuit in T.M., 131 Hawaiʻi at 422, 319 P.3d at
341.) Also, DHS typically has information related to a parent’s
financial plight, the parties pointed out, so DHS may be able to
aid the court’s indigency determination. If there’s uncertainty
regarding indigency or resistance from a parent, the right to
counsel demands that the family court appoint counsel.
After the court makes an indigency determination at the
first hearing attended by a parent, the family court should
expeditiously undertake efforts to appoint counsel. (That is,
if the court hasn’t already secured counsel before that
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hearing.) We recognize that the availability of counsel and the
immediate demands of chapter 587A may pose challenges. But
determining indigency when the parent first appears will
activate the right to counsel, curb structural error appeals,
and advance the child’s interest in permanency.
C. Mother Waived Any Conflict with the GAL
We turn to the two points of error Mother raised in her
opening brief to the ICA. The case has spanned more than five
years. Judicial efficiency and a permanent resolution that
serves the best interest of the children favor resolving the
merits here instead of remanding the case to the ICA.
First, Mother argued that the family court erred by
appointing the GAL because the GAL had a conflict – she
previously represented Mother in a different matter.
Mother did not raise her concern in family court. She
leveled her conflict accusation for the first time on appeal.
She concedes there is nothing in the record regarding a possible
conflict. In the GAL’s answering brief to the ICA, the GAL
declared that she discussed the issue with Mother and her
counsel at the time. Mother waived any potential conflict, the
GAL represented. Mother’s briefing does not dispute this. We
conclude that Mother waived the issue and failed to preserve it
for appeal. See Hawaiʻi Rules of Appellate Procedure Rule
28(b)(4)(iii).
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Mother’s second argument - the family court erred by
failing to appoint her new counsel after granting her trial
counsel’s post-trial motion to withdraw – also lacks merit.
Mother says that “[h]ypothetically,” she could have litigated
her first point of error (the GAL’s putative conflict) in a
motion for reconsideration or new trial. Thus, the family
court’s failure to appoint her substitute counsel was structural
error.
Mother misconstrues structural error. She was never
without counsel after the trial. On the same day that Mother’s
trial counsel moved to withdraw, Mother’s new counsel filed a
notice of appeal in the ICA. Mother’s trial counsel continued
as her court-appointed counsel pending the hearing on the motion
to withdraw. Once the court discharged the trial counsel, it
did not need to appoint Mother new counsel because she had
already hired someone. There is no structural error.
III.
We vacate the ICA’s September 26, 2023 judgment on appeal
that vacated orders affecting custody of the children from June
21, 2019. We affirm the Family Court of the Second Circuit’s
September 26, 2022 order revoking foster custody, granting
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permanent custody of the children to DHS, and ordering the
permanent plan of adoption by the children’s adult half-sister.
Eitan Arom /s/ Mark E. Recktenwald for petitioner Nicole Forelli, Guardian Ad Litem /s/ Sabrina S. McKenna
Terence Y. Herndon /s/ Todd W. Eddins (Julio C. Herrera, Patrick A. Pascual, Abigail S. Dunn Apana /s/ Henry T. Nakamoto on the briefs) for respondent Department of Human Services
Matthew Mannisto for respondent Mother
Davelynn M. Tengan (on the briefs) for respondent Father