In re: KH-V ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-SEP-2022
07:58 AM
Dkt. 61 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF KH-V
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 18-00170)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Father-Appellant (Father) appeals from the Order
Terminating Parental Rights, entered on December 9, 2021, by the
Family Court of the First Circuit (Family Court). Father
contends that the Family Court abused its discretion in
terminating his parental rights over his child (Child).
Specifically, Father argues that Petitioner-Appellee Department
of Human Services (DHS) failed to provide Father with a
reasonable opportunity to reunify with Child, when DHS failed to
comply with the Family Court's order to start Parent Child
Interactive Therapy (PCIT). Father also challenges findings of
fact nos. 96, 98, 104, 106-109, and 115, in the Family Court's
January 18, 2022 Findings of Fact and Conclusions of Law
(FOFs/COLs).
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 Father's points of error as follows and affirm.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
I.
"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) (quoting In re Jane
Doe, Born on May 22, 1976, 84 Hawai#i 41, 46, 928 P.2d 883, 888
(1996) (internal quotation marks omitted).
We review Father's challenges to the Family Court's
FOFs for clear error. 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."
Id. (citations and ellipsis omitted). Unchallenged findings of
fact are binding on the parties and this court. In re Doe, 99
Hawai#i 522, 538, 57 P.3d 447, 463 (2002) (citing Poe v. Hawaii
Labor Relations Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002)
("Unchallenged findings are binding on appeal.")). We likewise
review conclusions of law that present mixed questions of fact
and law for clear error. See In re JM, 150 Hawai#i 125, 137, 497
P.3d 140, 152 (App. 2021).
II.
A. Reunification Efforts and FOFs 96 and 107-109
"DHS is under an obligation to provide a reasonable
opportunity to parents through a service plan to reunify the
family" and to "make reasonable efforts to reunite parent and
child." In re Doe, 100 Hawai#i 335, 343, 60 P.3d 285, 293 (2002)
(interpreting HRS Chapter 587, the predecessor to HRS Chapter
587A); see HRS § 587A-2 (2018) ("Every reasonable opportunity
should be provided to help the child's legal custodian to succeed
in remedying the problems that put the child at substantial risk
of being harmed in the family home.").
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Father argues that DHS did not provide him with a
reasonable opportunity to reunify with Child when DHS failed to
comply with the Family Court's order to start PCIT services.
Father appears to assert that between July and November 2020, DHS
unreasonably prioritized the resource caregiver's (RCG) concerns
about COVID-19 transmission over DHS's own goal of reunification,
which ultimately led to Father's substance abuse relapse and loss
of parental rights. Apparently in connection with this argument,
Father also challenges FOFs 96 and 106-109,1/ which state:
96. Despite some setbacks and delays due to COVID-19,
the DHS made reasonable efforts to assist Father in
resolving his safety issues.
. . . .
106. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
avoid foster placement of [Child].
107. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
reunify [Child] with Father by identifying necessary,
appropriate, and reasonable services to address Father's
identified safety issues, and making the appropriate and
timely referrals for those services.
108. Under the circumstances presented by the instant
case, the DHS gave Father every reasonable opportunity to
succeed in remedying the problems which subjected [Child] to
substantial risk of being harmed in the family home, and to
reunify with [Child]. The DHS actively encouraged Father to
participate in necessary and reasonable services to allow
him to reunify with [Child].
109. Each of the service plans offered by the DHS and
ordered by the court were fair, appropriate, and
comprehensive.
We conclude that substantial evidence supports FOFs 96
and 106-109, and we are not left with a definite and firm
conviction that a mistake has been made. The record shows that
until May 2021, DHS retained its goal of reunification and plan
to begin PCIT despite Father's multiple relapses. DHS changed
course only after Father repeatedly failed to appear for random
urinalyses (UAs) in 2021 and then reported relapsing again, on
May 5, 2021. Further, there is no evidence that DHS moved to
terminate Father's parental rights based on the delay in starting
1/
These FOFs appear to be mixed determinations of fact and law.
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
PCIT. In fact, DHS social worker Michael Tovey (Tovey) reported
that DHS's inability to begin PCIT could not be held against
Father; DHS social worker Shane Uyeda (Uyeda) testified at trial
that Father was on a waiting list for PCIT when he relapsed in
May 2021; and the primary basis for the motion to terminate
parental rights (TPR Motion) was Father's substance abuse issues.
At trial, Tovey testified that Father had demonstrated
a pattern of relapsing when experiencing stress and had admitted
to relapsing at various times throughout the child protective
proceeding. Father also had avoided random drug testing. DHS's
February 3, 2021 Family Service Plan indicates that Father
avoided random UAs between May and October 2020, tested positive
for methamphetamine on December 30, 2020, then refused to engage
in random UAs. In a May 24, 2021 report, Uyeda stated that
Father failed to appear for random UAs on April 13, 2021,
April 27, 2021, and April 30, 2021. DHS's goal had been
reunification up until May 2021, when Father admitted to
relapsing again. The Guardian Ad Litem's February 11, 2021
report states, "I understand that COVID issues have somewhat
stalled reunification given the RCG's concerns, but now Father's
failure to participate in UAs is further delaying his progress."
DHS's TPR Motion specifically cites Father's inability
"to demonstrate healthy coping skills in utilizing his network of
supports to prevent relapsing as [F]ather has a pattern of using
illegal substances when life becomes difficult[,]" which called
into question his ability to demonstrate and sustain long-term
sobriety.
FOFs 78-84 and 87-88, which are unchallenged on appeal
and thus binding on the parties and this court (see supra),
state:
78. Father informed the DHS that he was doing
urinalyses with his probation officer, but on October 13,
2020, his probation officer told the DHS social worker that
he had not done a drug test in months.
79. A no-show for a drug test is presumed to be
positive.
80. Father no-showed for a drug test on October 29,
2020.
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
81. The DHS offered a drug test to Father on
October 30, 2020, but Father reported possible COVID-19
exposure and that his doctor told him to stay home.
82. A November 3, 2020 urinalysis was positive for
marijuana, but Father suddenly produced a medical marijuana
card, of which neither the DHS, nor his probation officer
had prior knowledge.
83. The DHS submitted a new referral to Hina Mauka
for an updated substance abuse assessment and random
urinalysis. Father's original appointment was November 23,
2020, but he rescheduled it for December 4, 2020 because he
reportedly had to care for his girlfriend's son, and then
again to December 22, 2020, with no explanation given.
84. Father's urinalysis on December 22, 2020 was
negative, but his urinalysis on December 30, 2020 was
positive for methamphetamine. On December 31, 2020, Father
left the DHS social worker a voicemail admitting to a
relapse on December 27, 2020. Father no-showed for a
urinalysis on January 6, 2021.
. . . .
87. Father still missed urinalyses at Ho#omau Ke Ola
on April 13, 27, and 30[,] 2021[,] and May 5, 2021.
88. Father contacted the DHS on May 5, 2021, and
. . . admitted to relapsing.
Moreover, uncontested FOF 95, which is also binding,
provides in relevant part, "Even taking into consideration some
setbacks and delays due to COVID-19, Father had ample time to
resolve all of his safety issues but he was unable to, in
particular, demonstrate that he could maintain sobriety over
time[.]"
Father also argues that DHS should not have taken into
account his relapse2/ when considering whether to move for TPR,
because it was caused in part by DHS's failure to start PCIT
between July and November 2020. However, Father cites no
evidence in the record supporting his factual assertion and no
authority supporting his argument. We have found none.
On this record, we conclude that FOFs 96 and 106-109
are not clearly erroneous, and Father's argument that DHS failed
to afford him a reasonable opportunity to reunify with Child is
without merit.
2/
Father does not identify the date of the relapse to which he
refers.
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
B. Tovey's Testimony and FOF 115
Father argues:
[DHS] was clearly in favor of transitioning [Child] to
[Father] in the Safe Family Home Report dated July 7, 2020 3/
and Short Report dated November 24, 2020 [ (11/24/20
Report)]. . . . Knowing of [Father]'s relapses [DHS] wanted
to reunify [Child] with [Father] but for [RCG] stopping
reunification by her fear of covid [sic]. . . . Tovey's
testimony under oath is inconsistent with his two reports.
[] Tovey's depiction of his reports as reflecting the
perennial goal of reunification is not credible.
Apparently in connection with this argument, Father also
challenges FOF 115, which states:
115. The DHS social workers . . . Tovey and . . .
Uyeda testified on behalf of the DHS, and their testimony
regarding their investigations, efforts, and assessments
were credible.
Tovey's testimony does not contradict his statements in
his 7/9/20 Report and 11/24/20 Report. In both his testimony and
his reports, Tovey explained that progress toward DHS's goal of
reunification had been hindered by the delay in implementing in-
person visits, caused by COVID-19. Regardless, "[i]t is for the
trial judge as fact-finder to assess the credibility of witnesses
and to resolve all questions of fact; the judge may accept or
reject any witness's testimony in whole or in part." State v.
Kwong, 149 Hawai#i 106, 112, 482 P.3d 1067, 1073 (2021) (quoting
State v. Eastman, 81 Hawai#i 131, 129, 913 P.2d 57, 65 (1996)).
FOF 115 is not clearly erroneous.
C. Remaining FOFs
Father challenges FOFs 98 and 1044/ but does not provide
3/
There does not appear to be a July 7, 2020 safe family home
report; however, in a July 9, 2020 report ( 7/9/20 Report), Tovey stated that
the permanency plan was reunification by October 2020 but COVID-19 had delayed
the reunification process, including starting PCIT, which was beyond Father's
control and could not be counted against him.
4/
FOFs 98 and 104 state:
98. Because of his repeated participation in various
drug treatment programs and relapses, at the time of trial,
it was not reasonably foreseeable that Father would be able
to maintain sobriety over a prolonged period of time.
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
any argument as to why either FOF (or mixed FOF/COL) was clearly
erroneous. See Hawai#i Rules of Appellate Procedure Rule
28(b)(7). His challenge to these FOFs is therefore without
merit.
III.
For the reasons discussed above, we conclude that the
Family Court did not abuse its discretion in entering the Order
Terminating Parental Rights. The order is therefore affirmed.
DATED: Honolulu, Hawai#i, September 15, 2022.
On the briefs:
/s/ Katherine G. Leonard
Herbert Y. Hamada Presiding Judge
for Father-Appellant.
Gay M. Tanaka and /s/ Keith K. Hiraoka
Julio C. Herrera, Associate Judge
Deputy Attorneys General, for
Petitioner-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
104. The DHS made reasonable efforts to accommodate
Father's Hawaiian cultural practices by making special
arrangements for him to do urinalysis at Ho #omau Ke Ola, and
accepting drug treatment reports from Ho#omau Ke Ola, which
specifically incorporates Hawaiian cultural practices into
its drug treatment programs.
7