In the Interest of Doe

144 P.3d 574, 112 Haw. 126, 2006 Haw. App. LEXIS 270
Procedural entryThis page is a short order in In the Interest of Doe. Read the opinion of the Court — 103 Haw. 130
Hawaii Intermediate Court of Appeals·Decided June 16, 2006·No. No. 27136·Published

Opinion

Opinion of the Court by

BURNS, C.J.

The alleged natural father (Father) of John Doe, bom on June 13, 2004 (Child), appeals from the family court’s1 January 5, 2005 Order Awarding Permanent Custody, January 5, 2005 Letters of Permanent Custody, and January 28, 2005 Orders Concerning Child Protective Act. We affirm.

BACKGROUND

Father and the mother (Mother) of Child are not married. Father has an untreated substance abuse problem and an unresolved issue of domestic violence.

In 1997, Father was convicted of the Unauthorized Control of a Propelled Vehicle. In 2000, when he violated a condition of his probation, he was incarcerated. For the abuse of Mother in October 2003, Father was convicted of Assault in the Third Degree. For Extortion in the First Degree and Burglary in the First Degree, Father was sentenced to probation for five years and incarceration for one year commencing March 21, 2004.

On August 4, 1999, in FC-S No. 97-04994, Mother’s parental rights and duties regarding one of her (but not Father’s) children were terminated.

On January 11, 2000, Father’s parental rights and duties regarding one of his (but not Mother’s) children were terminated. On June 19, 2001, Father’s parental rights and duties regarding another of his (but not Mother’s) children were terminated. Father admitted that he did not participate in substance abuse treatment or other services in the eases of these two children.

Child was born on June 13, 2004. Child was exposed to methamphetamines in útero and is a special needs child.

On June 21, 2004, the State of Hawai'i Department of Human Services (DHS) filed a petition for temporary foster custody of Child. On June 30, 2004, after a hearing, the petition was granted.

On August 6, 2004, the court ordered the June 16, 2004 Service Plan. In relevant part, this service plan required Father to “Establish paternity by calling the Child Support Enforcement Agency at 587-4250.” There is no indication in the record that Father complied with this order.

On September 9, 2004, the DHS filed a motion for permanent custody of Child.

On September 20, 2004, the court terminated Mother’s parental rights and duties regarding three of her (but not Father’s) children, the last of which was born on April 1, 2003.

On September 27, 2004, the court entered an order stating, in relevant part, that “Father’s request for visits is denied without prejudice due to [Child’s] health concerns. Father is entitled to a visit at a point in time when [Child’s] health permits.” On December 9, 2004, the court entered an order stating, in relevant part, as follows:

3 The Court asked DHS to arrange an in person visit at the day of trial on 01-05-05, depending on [Child’s] health; Father shall have no contact with foster parents;
4 The court takes judicial notice of the facilities at OCCC [0‘ahu Community Correctional Center], and it is not [an] appropriate place for a child with [Child’s] fragile health, and the Court defers to the judgment of DHS.

On January 5, 2005, after a trial, the court entered an order terminating Mother’s and Father’s parental rights and duties regarding Child and awarding permanent custody of Child to the DHS. This order also stated as follows:

20 DHS shall obtain [Child’s] birth certificate. If [Father] is not named on the birth certificate as [Child’s] father, DHS may need to serve notice on any other putative fathers by publication.

At a hearing on January 28, 2005, the DHS noted that Father was not named on Child’s birth certificate and requested permission to [128]*128serve “unknown natural father” by publication. At the conclusion of the hearing, the court entered an order denying Father’s motion for reconsideration and “Authorizing Service by Publication” “to UNKNOWN NATURAL FATHER ”.2

Father filed a notice of appeal on February 23, 2005. On March 31, 2005, the court entered the Findings of Fact and Conclusions of Law (FsOF and CsOL). This case was assigned to this court on September 26, 2005.

DISCUSSION

I.

The FsOF and CsOL describe Father as the “alleged natural father of [Child].” We raise two questions sua sponte. The first question is whether Father had any parental rights and duties? The answer is that he may have been a “concerned natural father” or, if not, possibly could have become a “concerned natural father” prior to the adoption of Child. The second question is whether the family court is authorized to terminate such an alleged father’s parental rights and duties? The answer is yes because otherwise it would be possible for the alleged father to unreasonably delay the process, contrary to the best interests of the child.

Hawaii Revised Statutes (HRS) Chapter 587 is HawaiTs Child Protective Act. HRS § 587-32 (1993) states, in relevant part:

Summons, (a) After a petition has been filed, the court shall issue a summons requiring a child’s family member or members who have legal or physical custody of the child at the time of the filing of the petition to bring the child before the court at the temporary foster custody hearing or on the return date set forth in the summons. In addition, any legal parent, the natural mother (unless the child has been the subject of an adoption), the adjudicated, presumed, or concerned natural father of the child as defined under section 578-2 (unless the child has been the subject of an adoption), and other persons who are to be parties to the child protective proceeding at the time of the filing of the petition also shall be summoned, in the manner provided in this section.
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(d) The summons shall state: “YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS CONCERNING THE CHILD OR CHILDREN WHO ARE THE SUBJECT OF THE ATTACHED PETITION MAY BE TERMINATED BY AWARD OF PERMANENT CUSTODY IF YOU FAIL TO APPEAR ON THE DATE SET FORTH IN THIS SUMMONS.”

HRS § 587-73 (Supp.2005) states, in relevant part:

Permanent plan hearing, (a) At the permanent plan hearing, the court shall consider fully all relevant prior and current information pertaining to the safe family home guidelines, as set forth in section 587-25, including but not limited to the report or reports submitted pursuant to section 587-40, and determine whether there exists clear and convincing evidence that:
(1) The child’s legal mother, legal father, adjudicated, presumed, or concerned natural father as defined under chapter 578 are not presently willing and able to provide the child with a safe family home, even with the assistance of a service plan;

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In the Interest of Doe, 144 P.3d 574, 112 Haw. 126, 2006 Haw. App. LEXIS 270 (hawapp 2006).

144 P.3d 574 (In the Interest of Doe) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

§ 578-2
Hawaii § 578-2(a)(5)(C)
§ 587
Hawaii § 587
§ 587-21
Hawaii § 587-21(b)(3)
§ 587-32
Hawaii § 587-32(a)
§ 587-73
Hawaii § 587-73