In re: CS, WS, KS1, KS2 ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-MAY-2022
07:56 AM
Dkt. 87 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF CS, WS, KS1, KS2
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 17-00106)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Mother-Appellant (Mother) appeals from the Family Court
of the First Circuit's (Family Court)1 August 13, 2021 Order
Terminating Parental Rights, August 13, 2021 Letters of Permanent
Custody, and September 23, 2021 Findings of Fact and Conclusions
of Law, terminating her and Father-Appellee's (Father) parental
rights to CS, WS, KS1, and KS2 [collectively Children].
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 arguments below and affirm.2
1
The Honorable Jessi L.K. Hall presided.
2
For organization, we address Mother's arguments out of order from how
they appear in her Opening Brief.
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(1) Mother contends the Family Court prevented her from
fully cross-examining one of the resource caregivers regarding
the safety of their home.
The "[d]iscretion resides within a trial court to
determine the scope and extent of cross examination." In re Doe,
100 Hawai#i 335, 346 n.23, 60 P.3d 285, 296 n.23 (2002) (citing
HRE Rule 1101 (1993)); Doe v. Doe, 98 Hawai#i 144, 154–55, 44
P.3d 1085, 1095–96 (2002). Here, the Family Court appears to
have limited Mother's cross-examination because Mother's
questions of whether two adults were in the home at all times or
whether the resource caregivers were open to voluntary continued
contact with Mother post-termination were irrelevant to whether
the permanent plan is in Children's best interests.
Notably, the Family Court permitted Mother to cross-
examine one of the resource caregivers on issues related to the
safety and appropriateness of the resource caregivers' home,
including whether they allowed Father to come to the house, had
to undergo a criminal background check, and had to ask other
people to watch Children for them. The Family Court did not
abuse its discretion in limiting the cross-examination.
(2) Mother contends the record lacks clear and
convincing evidence supporting findings of fact (FOF) 95 and 96,
which found:
95. [Mother] and [Father] are not presently
willing and able to provide the Children with a safe
family home, even with the assistance of a service
plan.
96. It is not reasonably foreseeable that
[Mother] and [Father] will become willing and able to
provide the Children with a safe family home, even
with the assistance of a service plan.
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Mother contends she completed her services and made substantial
progress in demonstrating her ability to provide a safe family
home.
However, the Family Court did not clearly err as many
unchallenged findings constitute substantial evidence supporting
FOF 95 and 96. In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623
(2001). Specifically, for over three years, DHS offered Mother
services to help resolve her safety issues, FOF 77-78, 89, 104,
119, 133-34, 138-40, and 169-72; Mother fails to recognize and
address her safety concerns and failed to meaningfully engage in
services, FOF 55, 58, 74, 76-79, 119-21, 124, 137, 229, 237, 239-
46, 248-58, and 260-63; Mother lacks insight into Children's
needs and refuses to acknowledge their educational, medical, and
psychological issues despite completing parenting classes, FOF
58, 68-70, 77-79, 111, 113-15, 120-21, 124, 132, 137-40, 142,
147, 153-59, 168-72, 183, 195-97, 211-14, 222-26, 235, 237-50,
252-57, and 261-64; Mother has a history of domestic violence
relationships, and despite completing domestic services, she
entered into another violent relationship, FOF 74-76, 78, 86-90,
119-21, 124-26, 129, 137-38, 157, 175-78, 232, 234, and 260;
Mother failed to attend Children's appointments and was not
consistent or attentive during visits, FOF 77-80, 113-18, 120-21,
139, 148-52, 159, 169-72, 183, 195-97, 200-01, 204, 208, 250-53,
256-57, and 265, and for over four years by the time trial
concluded, FOF 64, and in that time, Mother was unable to parent
Children and meet their needs, FOF 77-79.
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(3) Mother contends the Family Court abused its
discretion in terminating a related case in the middle of trial,
where the cases were being tried together, and if she had known
beforehand, she would have devoted more time to the instant case.
The record does not reflect, and Mother does not
contend, that she objected to the amount of trial days remaining
in her case or requested additional time to present her defense.
Thus, she failed to preserve this argument. See State v. Moses,
102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("As a general
rule, if a party does not raise an argument at trial, that
argument will be deemed to have been waived on appeal[.]").
(4) Mother contends DHS failed to provide her
reasonable reunification efforts and opportunities, arguing that
(a) DHS should have offered her more time to work on
reunification and visits due to Covid, (b) DHS hindered
visitation by requiring a visitation contract, (c) DHS should
have provided in-person visits despite the pandemic, (d) although
Mother's and the resource caregivers' relationship soured, DHS
allowed the resource caregivers to control appointments and
visits, (e) DHS failed to provide recommended attachment-based
services, as they were never delineated in Mother's service
plans, (f) DHS provided no specific road map to demonstrate
Mother's abilities, and (g) DHS failed to provide Mother a
reasonable opportunity to attend Children's therapy sessions
because it provided no referral or plan to do so. Relatedly,
Mother challenges FOF 97, 103, 105, 106, and 107.3
3
Mother also challenges FOF 202 and 203, but this appears to be a
mistake. Mother argues, "There existed compelling reason for the DHS not to
(continued...)
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While "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," an objection to DHS's reasonable efforts or a
claim for additional services must be timely made or the issue is
waived. See In re Doe, 100 Hawai#i at 343-44, 60 P.3d at 293-94.
Here, Mother waived her challenges to DHS's reasonable
efforts by not making timely requests for services, objecting to
the Family Court's findings of reasonable efforts, or otherwise
raising the issue of insufficient services. Although Mother
contends she objected to reasonable efforts "through motions,
contested trials, mediation and at hearings," her only supporting
record citations are to three hearing transcripts, none of which
contain an objection to reasonable efforts or to the service
plan, or a request for additional services.
Even if not waived, these arguments are contradicted by
unchallenged findings of fact, which are binding on this court.
See In re Doe, 99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002)
(unchallenged findings of fact are binding on appeal). For
example, Mother was unable to state why she should have more time
to provide a safe family home, FOF 262; Mother declined to
participate in virtual visits, FOF 252; Mother rejected an offer
for family therapy with Children, FOF 245, 255; and although the
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(...continued)
file its [Motion to Terminate] as the DHS failed to provide timely referrals
for necessary, appropriate and reasonable services including reasonable
visitation [FOF 202 & 203]." But FOF 202 and 203 do not relate to the Motion
to Terminate or to reasonable efforts.
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resource caregivers set Children's appointments, Mother failed to
appear at and participate in them and failed to acknowledge
Children's medical and developmental needs, FOF 77, 246, 247.
(5) Mother contends the record lacks clear and
convincing evidence the permanent plan is in Children's best
interests because a resource care-giver testified that she
attended Father's recent wedding and told CSA about it, which
contradicts her testimony that she would not allow Father around
Children; and the permanent plan does not require continuing
contact with Mother, despite the importance of maintaining family
relationships. These arguments concern her challenges to FOF 99
and 100,4 which provide:
99. The permanency goal of the March 2, 2020
Permanent Plan is adoption. The permanent plan goal of
adoption is in accord with the [Hawaii Revised Statutes
(HRS)] § 587A-32(a)(3) presumption that the goal of adoption
is in the Children's best interests.
100. The Permanent Plan, dated March 2, 2020, with the
permanency goal of adoption, is in the Children's best
interests.
Mother fails to show where in the record she preserved
these arguments; thus, they are waived. Moses, 102 Hawai#i at
456, 77 P.3d at 947. Even if not waived, given the two youngest
Children's ages at the time of foster placement and the length of
time Children were in foster care, the Family Court's decision is
in accordance with the statutory presumptions of HRS § 587A-
33(a)(3)(A) and (B) (2018).
For the foregoing reasons, we affirm the Family Court's
August 13, 2021 Order Terminating Parental Rights, August 13,
4
Though Mother identifies FOF 98 and 99 as the challenged FOF, this
appears to be an error.
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2021 Letters of Permanent Custody, and September 23, 2021
Findings of Fact and Conclusions of Law.
DATED: Honolulu, Hawai#i, May 6, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Crystal M. Asano,
for Mother-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Simeona A. Mariano
Julio Cesar Herrera, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
for Department of Human
Services-Appellee.
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