In re: QH ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-NOV-2022
12:18 PM
Dkt. 68 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF QH
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 19-00164)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Appellant Father (Father) appeals from the Order
Terminating Parental Rights, entered on April 4, 2022, in the
Family Court of the First Circuit (Family Court).1/ Father
appears to contend that the Family Court erred in finding that
Father would not be able to provide a safe family home for his
daughter (QH)2/ within a reasonable period of time.3/ Father also
challenges findings of fact (FOFs) 57, 79, 90, 91, and 92, in the
Family Court's May 12, 2002 Findings of Fact and Conclusions of
Law.
1/
The Honorable Andrew T. Park presided.
2/
At the time of trial in March 2022, QH was two years and eight
months old and had entered foster custody ten days after birth.
3/
Father's opening brief fails to comply in material respects with
Rules Expediting Child Protective Appeals Rule 11(a)(3) and Hawai #i Rules of
Appellate Procedure Rule 28(b)(4) and (7). For example, the brief does not
state how the Family Court erred and does not present any argument regarding
the challenged FOFs. Nevertheless, we have "consistently adhered to the
policy of affording litigants the opportunity 'to have their cases heard on
the merits, where possible.'" Morgan v. Planning Dep't Cty. of Kauai, 104
Hawai#i 173, 180-81, 86 P.3d 982, 989-90 (2004) (quoting O'Connor v. Diocese
of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364 (1994)). We thus address
Father's arguments to the extent discernible.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
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.
I.
We review Father's challenges to the Family Court's
FOFs for clear error. In re Doe, 95 Hawai#i 183, 190, 20 P.3d
616, 623 (2001).
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 appeal. In re Doe, 99 Hawai#i 522, 538, 57
P.3d 447, 463 (2002) (quoting Poe v. Haw. Labor Rels. Bd., 97
Hawai#i 528, 536, 40 P.3d 930, 938 (2002)).
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).
Accordingly:
[T]he family court's determinations . . . with respect to
(1) whether a child's parent is willing and able to provide
a safe family home for the child and (2) whether it is
reasonably foreseeable that a child's parent will become
willing and able to provide a safe family home within a
reasonable period of time present mixed questions of law and
fact; . . . they are reviewed on appeal under the clearly
erroneous standard. Likewise, the family court's
determination of what is or is not in a child's best
interests is reviewed on appeal for clear error.
Moreover, the family court is given much leeway in its
examination of the reports concerning a child's care,
custody, and welfare, and its conclusions in this regard, if
supported by the record and not clearly erroneous, must
stand on appeal.
Id. (quoting Doe, 95 Hawai#i at 190, 20 P.3d at 623).
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II.
Father contests FOFs 57, 79, and 90-92. Each is
addressed below.
A. FOF 57
FOF 57 states:
Father never completely acquired the basic parenting
skills that would keep a child safe. Since the beginning of
this case, Father could not grasp all of a baby's needs like
feeding, consoling, or age-appropriate milestones.
FOF 57 is supported by FOFs 61, 65-78, and 80-83, which
are unchallenged and thus binding on appeal. Specifically, these
unchallenged FOFs provide examples of Father's failures to
acquire basic parenting skills, which include: numerous no-shows
to visitations with QH, failure to bring QH diapers, snacks, and
drinks during visits, and twice leaving QH unsupervised at a
playground.
FOF 57 is also supported by the following testimony of
Department of Human Services (DHS) social worker Bruce Wallace
(Wallace):
Q. So given all of these services and education
given to [Father] . . . why do you still have concerns about
his parenting as a safety issue?
A. Well, just the recent incidents and also the
reports that I have discussed with Dr. Choy, that department
is -- already has exhausted everything that we could give
[Father].
Q. Then given this -- the time that's elapsed and
the services provided, what were your expectations of a
parent who could provide a safe family home at this point?
A. That he would be a parent that asked questions
about his daughter, that innate ability that . . . drives
parents to, one, to understand their child's daily life;
about what is school like; what . . . time does she go to
bed; what is her sleep patterns; what is -- she like to do;
who are her friends; what she likes, what she dislikes.
These are the things that -- innate ability that [Father]
does not possess of being a parent.
Thus, the record contains substantial evidence from
which a reasonable factfinder could have found it highly probable
that FOF 57 was true. See In re JK, 149 Hawai#i 400, 409-10, 491
P.3d 1179, 1188-89 (App. 2021).
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B. FOF 79
FOF 79 states:
On March 21, 2022, Father gave [QH] two little balls
during a [Parent-Child Interactive Therapy ( PCIT)] session
against the therapist's advice. [QH] put the balls in her
mouth and almost choked on them. Fortunately, the resource
caregiver noticed [QH]'s distress and intervened.
FOF 79 is supported by substantial evidence in the
record. Specifically, at trial, Wallace testified that the
resource caregiver had reported this incident to him, and that he
(Wallace) had discussed the incident with Father and PCIT staff.
Additionally, Dr. Choy testified that the choking incident
occurred in his office; Dr. Choy's staff told Father not to give
QH anything small that she could choke on; QH got two small
objects from the toy box in the office; and Dr. Choy's staff took
away the objects and made it clear to Father that QH should not
have the small objects on her own. Father also admitted giving
the two balls to QH and that he should not have done it.
Thus, the record contains substantial evidence from
which a reasonable factfinder could have found it highly probable
that FOF 79 was true. See JK, 149 Hawai#i at 409-10, 491 P.3d at
1188-89.
C. FOFs 90-92
FOFs 90-92 state:
90. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
avoid foster placement of [QH] and she has been in the same
placement since she was released from the hospital.
91. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
reunify the Child with [Father] and [Mother] by identifying
necessary, appropriate, and reasonable services to address
their identified safety issues, and making the appropriate
and timely referrals for these services.
92. Under the circumstances presented by the instant
case, the DHS gave Parents every reasonable opportunity to
succeed in remedying the problems which subjected the Child
to substantial risk of being harmed in the family home, and
to reunify with the Child. The DHS actively encouraged
[Father] and [Mother] to participate in necessary and
reasonable services to allow them to reunify with the child.
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FOFs 90-92 are also supported by substantial evidence
in the record. Specifically, Father does not contest FOFs 93 and
94, which state:
93. Each of the service plans offered by the DHS and
ordered by the court were fair, appropriate, and
comprehensive.
94. None of the underlying facts and data upon which
the DHS based its opinions, assessments, and recommendations
was shown to be untrustworthy. The DHS' continuing
assessment in this case was conducted in an appropriate
manner.
FOFs 90-92 are also supported by Wallace's trial
testimony. Wallace testified as follows regarding DHS's efforts
to reunify QH and Father:
Q. What types of services has [the] department put
into place to address [parenting] issues?
A. Sure. At . . . the beginning of the case we
have hands-on parenting. We've referred him to hands-on
parenting, Strong Families Home Visiting. He was doing
that. He was inconsistent with that and they closed him
out.
Also, he had the opportunity to do the ABC
Program, which is evidence-based program, which he did not
-- he was inconsistent with that and he was closed out of
that.
We also did parenting education with
[Comprehensive Counseling and Support Services], with
Parents Inc. He did complete that.
We also did another hands-on parenting with
Catholic Charities. We did that. And also we -- right now
currently we are doing PCIT.
Wallace further testified that DHS had exhausted all of its
services that would help Father resolve safety issues; Father had
not shown any improvement on these issues; Father was still not
providing for all of QH's needs during their visits; and, because
of Father's inconsistency, Wallace was concerned that Father "may
forget her at some place, maybe at school[.]" Wallace also
expressed concern that:
[Father] doesn't know his child. He has never asked
about her schooling, . . . her schooling schedule, her sleep
time, her -- what's it like to be at the resource
caregiver's home, who she plays with. That drive that wants
to know everything about your child, or everything that's --
might be wrong about . . . what we're doing wrong, or
anything that he has concerns about during, say, if she went
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to a water park and he didn't know about it or something
like that. Or disagreed with something. He . . . has never
asked us anything about that.
Thus, the record contains substantial evidence from
which a reasonable factfinder could have found it highly probable
that FOFs 90-92 were true. See JK, 149 Hawai#i at 409-10, 491
P.3d at 1188-89.
III.
Father's primary contention appears to be that the
Family Court erred in determining that he would not be able to
provide a safe family home for QH within a reasonable period of
time.
HRS § 587A-33(a) (2018) provides, in relevant part:
(a) At a termination of parental rights hearing, the court
shall determine whether there exists clear and convincing
evidence that:
(1) A child's parent whose rights are subject to
termination is not presently willing and able to
provide the parent's child with a safe family
home, even with the assistance of a service
plan; [and]
(2) It is not reasonably foreseeable that the
child's parent whose rights are subject to
termination will become willing and able to
provide the child with a safe family home, even
with the assistance of a service plan, within a
reasonable period of time, which shall not
exceed two years from the child's date of entry
into foster care[.]
HRS § 587A-7(a) (2018) sets forth numerous factors that the
Family Court must consider "when determining whether a child's
family is willing and able to provide the child with a safe
family home[.]"
Here, the Family Court entered extensive findings of
fact related to Father's willingness and ability to provide QH a
safe family home. The FOFs describe, among other things, QH's
age and vulnerability; the reports of harm and threatened harm to
QH; the results of Father's psychological evaluation; Father's
failure to completely acquire the basic parenting skills to keep
a young child safe; Father's inconsistency in demonstrating an
understanding of and involvement in services recommended by DHS
as necessary to provide QH with a safe family home; Father's
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failure to resolve safety issues within a reasonable period of
time; and DHS's assessment of Father's ability to provide QH with
a safe family home. In addition, uncontested witness testimony
established that DHS provided Father with reasonable
opportunities to demonstrate his ability to provide a safe family
home for QH, but Father inconsistently participated in
visitations with QH (missing at least thirty-one scheduled
visits), family training courses, and psychiatric sessions, which
ultimately led DHS to seek to terminate Father's parental rights.
Based on the entire record, we conclude that the Family
Court did not clearly err in determining that Father was not
presently willing and able to provide QH with a safe family home,
even with the assistance of a service plan.
IV.
For the reasons discussed above, the Order Terminating
Parental Rights, entered on April 4, 2022, in the Family Court of
the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, November 10, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Herbert Y. Hamada Chief Judge
for Father-Appellant.
Gay M. Tanaka and /s/ Clyde J. Wadsworth
Julio C. Herrera, Associate Judge
Deputy Attorneys General,
for Petitioner-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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