In re: TJ

• Court: Hawaii Intermediate Court of Appeals
• Decided: December 8, 2020
• Docket: CAAP-19-0000716
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 08-DEC-2020 08:01 AM Dkt. 118 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF TJ

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 14-00008)

SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Mother-Appellant (Mother) appeals from the September

18, 2019 Orders Concerning Child Protective Act (Order Modifying

Intervenor Status), entered by the Family Court of the First

Circuit (Family Court);1 Mother also challenges the Family

Court's related Findings of Fact and Conclusions of Law (FOFs and

COLs) entered on November 7, 2019. In the Order Modifying

Intervenor Status, the Family Court limited Maternal Grandmother

(Grandmother) and Maternal Aunt's (Aunt) participation in the

proceedings regarding Petitioner-Appellee the State of Hawai#i,

1 The Honorable Brian A. Costa presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Department of Human Services' (DHS) (second) motion to terminate

Mother's parental rights (MTPR) as to Mother's child, TJ.

On appeal, Mother contends, on various grounds, that

the Family Court erred and abused its discretion in entering the

Order Modifying Intervenor Status; Mother challenges FOFs 25, 49,

50, 51, and 62,2 as well as COLs 12, 13, 14, [15], 16, 17, and

[18].

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 contentions as follows:

As a preliminary matter, we note that Mother is

sufficiently aggrieved by the Order Modifying Intervenor Status.

Mother contends that her own rights are at stake because Mother

herself is cognitively impaired and admittedly would not be able

to provide a safe family home for TJ - who was born with

multiple, serious, medical issues that require a high level of

care - without the continuous and concerted support of

Grandmother and Aunt in their joint family home. See, e.g.,

Abaya v. Mantell, 112 Hawai#i 176, 181, 145 P.3d 719, 724 (2006)

(setting forth standard for standing to appeal).

2 Mother also objects to FOFs 57-59, which relate to issues that are not before us in this appeal. We will not address them and this Summary Disposition Order shall not be considered a decision on the merits of these issues.

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Mother first argues that her due process rights were

violated when the Family Court entered the Order Modifying

Intervenor Status because she was not given prior notice that the

court would consider limiting Grandmother and Aunt's

participation. This contention is without merit, as the court

informed the parties, at a May 1, 2019 hearing, that it intended

to dismiss Grandmother and Aunt from the case if DHS subsequently

filed a motion to terminate Mother's parental rights.3

Mother contends that the Family Court abused its

discretion in modifying the prior order that allowed Grandmother

and Aunt to participate in this case as parties, because there

were no cogent reasons for doing so. The Family Court limited

Grandmother and Aunt's participation in the MTPR trial under

Hawai#i Revised Statutes (HRS) § 587A-4 (2018), which provides,

inter alia, that the court

may limit a party's right to participate in any child protective proceeding if the court deems such limitation of such party's participation to be consistent with the best interests of the child and such party is not a family member who is required to be summoned pursuant to section 587A-13, except as otherwise provided in this chapter. [4]

3 Although FOF 25 incorrectly states the Family Court provided the foregoing notice on June 25, 2019, the error is harmless. Mother does not take issue with the incorrect date; rather, she claims the Family Court "never" provided notice. 4 The statute's definition of "party" states:

"Party" means an authorized agency; a child who is subject to a proceeding under this chapter; the child's parents and guardian ad litem; any other person who is alleged in the petition or who is subsequently found at any child protective proceeding to be encouraging, causing, or contributing to the acts or conditions that brought the child within the scope of this chapter; and (continued...)

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We conclude that the Family Court properly exercised

its authority under the statute to limit Grandmother and Aunt's

roles in the MTPR proceedings, notwithstanding the earlier order

designating them as parties.

Mother also challenges the Family Court's determination

that it was consistent with TJ's best interests to limit

Grandmother and Aunt's participation in the MTPR proceedings.

However, Mother does not dispute FOF 55, which provides that

Grandmother and Aunt's "interests or claims are not relevant to

the MTPR." In addition, the Family Court expressly stated that

Mother would not be precluded from calling Aunt and Grandmother

as witnesses at the MTPR trial or making arguments regarding

Mother's reliance on Aunt and Grandmother to provide a safe

family home. Mother does not articulate how it was in TJ's best

interest to have Aunt and Grandmother play a greater role as

litigants in the termination hearing or how Mother's rights to

present her case were impacted by the limitation of their roles.

4 (...continued) may include any other person, including the child's current foster parent or current resource family, if the court finds that such person's participation is in the best interest of the child; provided that the court may limit a party's right to participate in any child protective proceeding if the court deems such limitation of such party's participation to be consistent with the best interests of the child and such party is not a family member who is required to be summoned pursuant to section 587A-13, except as otherwise provided in this chapter.

HRS § 587A-4 (emphasis added).

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Finally, Mother contends that "[e]ven if this Court

found there to be support in the record for the trial judge's

findings as it relates to removal of Aunt and Grandmother as full

parties, it should nonetheless be left with the firm conviction

that such removal was a mistake." Mother's argument is premised

on her contention that because she relies upon Grandmother and

Aunt to make the home safe for TJ, Grandmother and Aunt must be

allowed to question witnesses, provide their own argument, and

produce their own evidence in the MTPR trial. However, Mother

fails to identify – generally or specifically – any witness,

evidence, or argument that could not be presented with the aid of

her own counsel, including with respect to Grandmother and Aunt's

role in providing a safe family home for TJ. Accordingly, we

conclude that this argument is without merit.

For these reasons, the Family Court's September 18,

2019 Order Modifying Intervenor Status is affirmed.

DATED: Honolulu, Hawai#i, December 8, 2020.

On the briefs: /s/ Lisa M. Ginoza Jacob G. Delaplane, Chief Judge for Mother Cross-Appellant. /s/ Katherine G. Leonard Kellie M. Kersten, Associate Judge Julio C. Herrera, Patrick A. Pascual, /s/ Keith K. Hiraoka Regina M. Shimada, Associate Judge Deputy Attorneys General, Department of the Attorney General, Family Law Division, State of Hawai#i, for Petitioner-Appellee DEPARTMENT OF HUMAN SERVICES.