In re: TJ ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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