In re: V Children ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-APR-2023
07:46 AM
Dkt. 163 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
IN THE INTEREST OF V CHILDREN
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-S-18-00135)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and Chan, JJ.)
Respondent-Appellant Father (Father) appeals, and
Respondent-Appellant/Cross-Appellant Mother (Mother) cross-
appeals, from the March 29, 2022 Order Terminating Parental
Rights (TPR Order) filed by the Family Court of the First
Circuit (Family Court).1 On May 11, 2022, the Family Court
entered Findings of Fact and Conclusions of Law for the TPR
Order (FOFs/COLs).
Mother raises two points of error on appeal,
contending that: (1) the TPR Order and all FOFs and COLs are
clearly erroneous, and specifically FOF 55 and COLs 15 and 16
are clearly erroneous because she did not voluntarily stipulate
1 The Honorable Jessi L.K. Hall presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
to Petitioner-Appellee Department of Human Services's (DHS)
amended second motion to terminate her parental rights (Amended
Second TPR Motion); and (2) the Family Court violated Father's
due process rights by failing to appoint him counsel for a
significant portion of the case.
Father argues that the Family Court violated his due
process rights by discharging court-appointed counsel and re-
appointing him counsel on the eve of the trial to terminate his
parental rights (TPR Trial). Father identifies the TPR Order
and FOFs 7, 11-22, 83, 86, 103, 105, 107, 107a, 108, 108b, 108c,
108e, 109, 111, 112, 118-19, 122, 123-146 and COLs 10-14 as his
points of error.
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 and Father's points of error as follows, and
affirm.
The following pertinent background is as stated in the
FOFs/COLs. EV and JV (collectively Children) are the subject
children of this appeal.2 On June 5 and 6, 2018, police removed
the Children from Mother's custody, and on June 8, 2018, DHS
filed a petition for temporary foster custody of the Children
due to physical neglect and lack of supervision. EV was three
years old and JV was four years old when they entered foster
care on August 4 and 5, 2018, respectively.
Mother did not complete her court-ordered services and
failed to consistently visit the Children. Mother's visits with
the Children were suspended in October 2021 due to harmful
psychological effects the visits were having on the Children.
2 This case involved two additional children: AA and DV. AA is
the child of Mother and Father. On September 29, 2020, the Family Court
terminated Mother's and Father's rights to AA, and AA was subsequently
adopted. DV is the child of Mother and ES (Boyfriend). DV was returned to
Mother and Boyfriend.
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Father resided in New Zealand and never traveled to
O‘ahu to see the Children during the pendency of this case.
Father knew of monthly court hearings, but chose not to
participate. In May 2020, Father contacted the Family Court and
received court-appointed counsel, Jacob Delaplane (Delaplane).
Father subsequently failed to appear at several Family Court
hearings and as a result, the Family Court entered default
against Father and ultimately discharged Delaplane on
November 17, 2020.
On November 8, 2021, DHS filed the Amended Second TPR
Motion.3
On March 1, 2022, Mother stipulated to the Amended
Second TPR Motion. Also on March 1, 2022, after a nearly two-
year absence, Father re-appeared with Delaplane. The Family
Court re-appointed Delaplane and set aside default against
Father prospectively. Thereafter, Father, represented by
Delaplane, remotely attended Family Court hearings and the TPR
Trial.
On March 29, 2022, the Family Court granted DHS's
Amended Second TPR Motion and terminated Mother's and Father's
parental rights. The FOFs/COLs contain necessary findings under
Hawaii Revised Statutes (HRS) § 587A-33(a) (2018).
(1) Mother's first point of error is a claim that all
FOFs and COLs are clearly erroneous, specifically FOF 55 and
COLs 15 and 16 are clearly erroneous because she did not
voluntarily stipulate to DHS's Amended Second TPR Motion.4
3 On August 24, 2020, DHS filed a motion to terminate parental
rights as to the Children, which was subsequently withdrawn. On November 5,
2021, DHS filed a second motion to terminate parental rights.
4 FOF 55 and COLs 15 and 16 provide:
55. Present at a pretrial hearing regarding the DHS'
[Amended Second TPR Motion] on March 1, 2022, were Mother,
[Boyfriend], Father and their court-appointed counsels.
3
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Mother's blanket objection to all FOFs and COLs does
not comply with Rules Expediting Child Protective Appeals
(RECPA) Rule 11(a)(3), thus it is disregarded pursuant to Hawai‘i
Rules of Appellate Procedure (HRAP) Rule 28(b)(4). See RECPA
Rule 1.
FOF 55's finding that Mother's stipulation was
voluntarily made is a mixed question of fact and law that is not
clearly erroneous. See In re Doe, 95 Hawai‘i 183, 190, 20 P.3d
616, 623 (2001) (applying clearly erroneous standard of review
to mixed questions of fact and law, which are dependent on the
facts and circumstances of each individual case). In support of
Father's default from September 22, 2020 was set aside
prospectively only, and his court-appointed counsel, Jacob
Delaplane, was re-appointed. Father requested a trial on
the DHS' [Amended Second TPR Motion], which was set for
trial on March 23, 2022. Mother knowingly, intelligently,
and voluntarily stipulated to the DHS' [Amended Second TPR
Motion] as to the Children filed on November 8, 2021, and
the court set aside Mother's trial on March 21-24, 2022.
Mother, [Boyfriend] and their respective court-appointed
counsels were excused from Father's March 23, 2022 trial.
. . . .
15. "Parental custody of minor children is a
fundamental right and any waiver thereof must be
voluntarily, knowingly, and intelligently given. The
Hawaii Supreme Court has said 'to determine whether a
waiver was voluntarily and intelligently undertaken, this
court will look to the totality of facts and circumstances
of each particular case.' The same rule applies in the
context of a parent consenting to permanent custody of the
parent's child by the DH." In Re Doe Children, 2003
Haw.App Lexis 176, 20 (citing State v. Friedman, 93 Hawai‘i
63, 996 P.2d 268 (2000)).
16. "Where it appears from the record that a
defendant has voluntarily waived a constitutional right to
a jury trial, the defendant carries the burden of
demonstrating by a preponderance of the evidence that
his/her waiver was involuntary." State v. Friedman, 93
Hawai‘i 63, 996 P.2d 268 (2000) (citing State v. lbuos, 75
Haw. 118, 120, 857 P.2d 576, 577 (1993)). The same burden
applies to parents who stipulate to terminate their
parental rights.
4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
her argument, Mother cites statements made by herself, her
counsel, and the following August 13, 2019 statement by DHS as
evidence of pressure to stipulate to the Amended Second TPR
Motion:
But [DHS] does plan on still filing for the legal
guardianship for [AA]. And we're hoping the action move
[sic] forward as we believe that would be in his best
interest for his current resource caregivers to become his
legal guardian as [Mother] does have a lot on her plate
right now, especially if she wants to bring [the Children]
back to the home.
The record, however, reflects that the Family Court conducted a
colloquy with Mother prior to accepting her stipulation, to
ensure that Mother's mind was clear, she understood what she was
agreeing to, that no one was forcing her to agree to terminating
her parental rights, that no one promised Mother anything in
exchange for her agreement, and that Mother was agreeing of her
own free will.5
5 The transcript of the March 1, 2022 hearing on Mother's
stipulation to the Amended Second TPR Motion contains the following exchange:
THE COURT [to MOTHER]: . . . So [counsel for
Mother] has stated that you are in agreement to the State's
motion to terminate your parental rights with regards to
[JV] and [EV]. Is that correct?
[MOTHER]: Yes, that's correct.
THE COURT: And do you have any questions with regards
to what that means?
[MOTHER]: No.
THE COURT: Okay. And I apologize for asking you this,
but are you currently under the influence of any drugs,
medication, or alcohol?
(A pause.)
THE COURT: Oh, sorry. You're on mute.
[MOTHER]: No.
THE COURT: Is your mind clear?
[MOTHER]: Yes.
5
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
On this record, substantial evidence supports FOF 55's
finding that Mother knowingly, intelligently, and voluntarily
stipulated to DHS's Amended Second TPR Motion, and Mother's
contention is without merit. See Doe, 95 Hawai‘i at 190, 20 P.3d
at 623.
COLs 15 and 16 are reviewed de novo for clear error.
See In re JM, 150 Hawai‘i 125, 137, 497 P.3d 140, 152 (App. 2021)
(reviewing family court COLs de novo under the right/wrong
standard). The law summarized in COLs 15 and 16 is accurate,
thus COLs 15 and 16 are upheld on appeal.
(2) Mother's second point of error, and Father's
primary argument, is a claim that the Family Court violated
Father's due process rights by discharging Father's counsel for
a portion of the case. Mother lacks standing to raise issues on
behalf of Father. See In re F. Children, Nos. 28882, 28883,
28884, 2009 WL 1300933, at *8 (App. May 8, 2009) (mem.)
THE COURT: Is anyone forcing you to agree to
terminate your parental rights?
[MOTHER]: No.
THE COURT: Has anyone promised you anything in
exchange for doing so?
[MOTHER]: No.
THE COURT: Are you doing so of your own free will?
[MOTHER]: Yes.
THE COURT: Thank you, [Mother]. And I just want to
say I know it's not an easy decision. It was actually a
very heartbreaking decision for you to make. We've been
with you for quite a long time through this process, but I
appreciate you looking at what's best for [JV] and [EV] and
for your other children. And I do wish you and [Boyfriend]
the best of luck in the mainland.
[MOTHER]: Thank you so much.
THE COURT: So the court is going to find that
[Mother] has knowingly, voluntarily and intelligently
stipulated to terminate her parental rights in this matter.
6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(citation omitted). Nonetheless, we address the issue because
Father raises it.
On March 15, 2023, the Hawai‘i Supreme Court issued In
re JH, No. SCWC-XX-XXXXXXX, 2023 WL 2518743 at 1 (Mar. 15,
2023), which holds:
[I]f the family court appoints counsel at the onset of a
parental rights case, and later there's a break in
representation due to a parent's voluntary absence, then
there is no structural error. As long as a fundamentally
fair procedure ensues and due process is satisfied, the
family court's decision will stand.
The supreme court explained, among other things, that discharge
of counsel is not structural error because a fundamentally fair
process may still happen in discharge of appointed counsel
cases. Id. at *4. As such, In re JH directs appellate courts
to "assess[] the proceedings to see if they were fundamentally
fair." Id. at *6.
Here, the proceedings as to Father were fundamentally
fair in light of Father's admitted knowledge of the Family Court
proceedings and choice not to participate in proceedings, DHS's
efforts to locate Father and involve him in proceedings, the
Family Court's timely appointment of counsel for Father when
Father chose to engage in proceedings, and the Family Court's
timely re-appointment of counsel for Father when Father chose to
re-engage in proceedings.
The record reflects that Father had a meaningful
opportunity to participate in the case with the aid of counsel,
and the delay in appointment of counsel for Father and the two-
year gap in representation due to Father's failure to appear did
not render the proceedings fundamentally unfair. As such,
Father's argument lacks merit.
(3) Father's points of error consist of an objection
to the TPR Order and objections to FOFs 7, 11-22, 83, 86, 103,
7
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
105, 107, 107a, 108, 108b, 108c, 108e, 109, 111, 112, 118-19,
122, 123-146 (Contested FOFs) and COLs 10-14 (Contested COLs).6
6 The Contested FOFs provide:
7. Father received court-appointed legal
representation, despite there not being a clear indication
of his income. Jacob Delaplane, Esq. was Father's court-
appointed counsel. Mr. Delaplane competently and zealously
represented Father during these proceedings.
. . . .
11. On June 13, 2018, at the initial court hearing
for the Petition, Mother was served with the summons and
the Petition. Mother was provided court-appointed legal
representation by Tae Chin Kim, Esq. [Boyfriend] was
provided court-appointed legal representation by Cheryl
Yamaki, Esq. The court confirmed temporary foster custody
and scheduled a continued return hearing for Mother on July
9, 2018. The court reserved the three calls made for
Father, whose whereabouts were unknown at the time, and
found that although Father was not served, the DHS
had made reasonable efforts to locate him and that it would
not be in the best interests of the Children to postpone
the proceedings until service could be completed.
12. On July 9, 2018, Mother contested the Petition
and the court set a mediation for August 13, 2018, and an
all-day trial for September 19, 2018. [Boyfriend]
stipulated to the adjudication of the Petition and the
court invoked its HRS Chapter 587A subject matter
jurisdiction over [Boyfriend] and [DV] and awarded
[Boyfriend] family supervision of [DV] once he moved to a
different residence. The court reserved the three calls
made for Father, whose whereabouts remained unknown, and
found that although Father was not served, the DHS had made
reasonable efforts to locate him and that it would not be
in the best interests of the Children to postpone the
proceedings until service could be completed.
13. At the mediation on August 13, 2018, Mother was
present with her court-appointed counsel and an agreement
was reached. Based on Mother's knowing, intelligent, and
voluntary stipulation to adjudication of the Petition, the
court adjudicated the Petition, invoked its HRS Chapter
587A subject matter jurisdiction over Mother and the
Children, awarded the DHS foster custody of the Children,
and ordered the service plan dated June 7, 2018, as
modified, which included maintaining contact with the DHS
social worker, parenting/outreach services/counseling,
psychological evaluation cooperate and work in partnership
with the DHS social worker. Mother's trial date of
September 19, 2018 was set aside. Also present was
[Boyfriend] and his court-appointed counsel. The court
ordered family supervision of [DV] to [Boyfriend],
8
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
effective on August 16, 2018. The court reserved the three
calls made for Father, whose whereabouts remained unknown,
and found that although Father was not served, the DHS had
made reasonable efforts to locate him and that it would not
be in the best interests of the Children to postpone the
proceedings until service could be completed.
14. On August 21, 2018, Mother and [Boyfriend], along
with their respective court-appointed counsels, stipulated
and the court admitted the case into the Hawai‘i Zero-To-
Three Specialty Court ("HZTT"). The court reserved the
three calls made for Father, whose whereabouts remained
unknown, and found that although Father was not served, the
DHS had made reasonable efforts to locate him and that it
would not be in the best interests of the Children to
postpone the proceedings until service could be completed.
15. Monthly HZTT hearings were held on September 18,
2018; October 16, 2018; November 20, 2018; January 15,
2019; March 19, 2019; April 16, 2019; June 18, 2019; and
September 17, 2019. Present at these hearings were Mother
[Boyfriend], and their respective court-appointed
attorneys. At each hearing, the court continued existing
orders and reserved the three calls made for Father, whose
whereabouts remained unknown, and found that although
Father was not served, the DHS had made reasonable efforts
to locate him and that it would not be in the best
interests of the Children to postpone the proceedings until
service could be completed.
16. Present at a HZTT monthly hearing on December 18,
2018, were Mother, [Boyfriend], and their respective court-
appointed attorneys. The DHS reported to the court that
Mother had provided the DHS with Father's phone number, but
Father had not answered nor returned any of the DHS' calls.
Mother believed Father was residing in New Zealand and was
to provide the DHS with Father's address to attempt
service. The court reserved the three calls for Father and
found that although Father was not served, the DHS had made
reasonable efforts to locate him and that it would not be
in the best interests of the Children to postpone the
proceedings until service could be completed.
17. Present at a HZTT hearing on February 19, 2019,
were Mother, [Boyfriend], and their respective court-
appointed attorneys. The court entered the requisite HRS §
587 A periodic review findings, ordered the service plan
dated February 8, 2019, and continued foster custody of the
Children and [AA] and family supervision of [DV] with
[Boyfriend]. The court reserved the three calls made for
Father, whose whereabouts remained unknown, and found that
although Father was not served, the DHS had made reasonable
efforts to locate him and that it would not be in the best
interests of the Children to postpone the proceedings until
service could be completed.
9
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
18. Present at a HZTT hearing on May 21, 2019 were
Mother, [Boyfriend] and their respective court-appointed
attorneys. The court found that Mother can provide a safe
family home for [DV] with the assistance of a service plan
and ordered that family supervision of [DV] was extended to
include Mother as well as [Boyfriend]. The court reserved
the three calls for Father and found that although Father
was not served the DHS made reasonable efforts to locate
Father and that it would not be in the best interests of
the children to postpone the proceedings until service can
be completed.
19. Present at a HZTT hearing on July 16, 2019, were
the court-appointed counsels for both Mother and
[Boyfriend], but Mother and [Boyfriend] were excused for
the hearing due to Mother being in labor. The court
continued existing orders, authorized the DHS to serve
Father by publication, reserved the three calls for Father,
and found that although Father was not served, the DHS had
made reasonable efforts to locate Father and that it would
not be in the best interests of the Children to postpone
the proceedings until service could be completed.
20. Present at a HZTT hearing on August 13, 2019,
were Mother, [Boyfriend] and their respective court-
appointed attorneys. The court entered the requisite HRS §
587A periodic review and permanency findings, continued
foster custody of the Children and [AA], continued family
supervision of [DV], and ordered the service plan dated
August 6, 2019 as modified. As for Father, the court
reserved the three calls made for him and found that
although Father was not served, the DHS made reasonable
efforts to locate Father and that it would not be in the
best interests of the children to postpone the proceedings
until service can be completed.
21. Present at a HZTT hearing and a return on a
Petition for Legal Guardianship for [AA] in FC-G No.
19-1-6235 on October 15, 2019, were Mother, [Boyfriend] and
their respective court-appointed attorneys. Mother
contested the legal guardianship petition filed by the DHS,
which requested legal guardianship of [AA] be granted to
his resource caregivers. The court set a mediation for
December 9, 2019, and a legal guardianship trial for
February 4, 2020. As for Father, the court reserved the
three calls made for him and found that although Father was
not served, the DHS made reasonable efforts to locate
Father and that it would not be in the best interests of
the children to postpone the proceedings until service can
be completed.
22. Father was served with the Petition by
publication, with a return hearing on November 6, 2019.
. . . .
10
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
83. Dr. Garcia's professional opinion is that moving
the children to New Zealand would be a significant risk
factor. Since there is no bond with Father, the transition
for the children will be difficult.
. . . .
86. Reunification with either Mother or Father would
cause the Children psychological harm and regression as
neither parent has the ability to provide the necessary
stability and high-level of care.
. . . .
103. At the commencement of this matter the DHS
social worker only had a phone number for Father. She
attempted to call Father several times, but he did not
answer and never returned the call.
. . . .
105. Throughout the pendency of this case, Mother
maintained contact with Father and informed him about the
status of the Children and the ongoing case and court
hearings. Despite this information, Father chose not to
participate in the majority of the proceedings.
. . . .
107. Father's purposeful limited court appearances
throughout the pendency of this case, specifically four out
of nearly 50 hearings, demonstrates his inability to
prioritize the needs of the Children over his own.
a. Father's first court appearance in this case on
June 16, 2020, was nearly 2 years after the Children were
removed from Mother's care, and he missed 25 hearings
between June 2018 and June 2020.
. . . .
[108] b. Despite being provided with a list of sites
to obtain a free paternity/DNA test, Father failed to
complete the court-ordered paternity/DNA testing.
[108] c. Despite Father requesting a home study in
New Zealand, the New Zealand Child Welfare was unable to
proceed on the home study because Father did not complete
the required paternity/DNA testing.
. . . .
[108] e. For approximately one hour of the afternoon
portion of the trial on March 23, 2022, Father was driving
what looked to be his work truck. Father did not make this
trial a priority.
11
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
109. Father testified that he had the social workers
[sic] contact information throughout the life of the case,
but that he did not make any attempts to contact her.
. . . .
111. Father lacks insight into the Children's mental
health issues, which poses a high risk of harm to the
Children.
112. Father testified that he was not aware of the
Children's incidents of self-ham [sic] and mental heal
[sic] issues, nor their mental health diagnoses.
. . . .
118. Sending the children to New Zealand at this
time would not be in their best interest as they are no
longer familiar with Father.
119. Father is unable or unwilling to make the
Children a priority in order to reunite with them. The
Court finds that even if provided with more time, Father
will continue to be unable to provide a safe family home
for the Children into the foreseeable future.
. . . .
123. Under the circumstances presented in this case,
Mother and Father were given every reasonable opportunity
to effectuate positive changes to enable them to provide a
safe family home with the assistance of a service plan in
order to be reunified with the Children.
124. 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.
125. 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, within a reasonable period of time not
to exceed two years from the Children's date of entry into
foster care.
126. Based on the credible expert testimony
presented at trial, it is important for parents involved in
child welfare cases to develop insight into their problems
and safety issues and the causes of their problems in order
to facilitate positive lifestyle changes that would allow
them to provide a safe family home for their Children.
Lack of insight negatively impacts a parent's ability to
resolve the parent's problems.
127. Mother and Father lack the insight necessary to
consistently address their own safety issues.
12
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
128. Despite being given an extended period of time
to cooperate with the DHS, Mother and Father failed to
complete all of the DHS recommended services and failed to
demonstrate their ability to provide a safe family home for
the Children with the assistance of a service plan.
. . . .
129. Having made the "parental unfitness" findings
of fact, pursuant to HRS § 587A-33 (a)(1) and (2) regarding
Mother and Father, the Court makes the following findings
of fact regarding the Permanent Plan dated November 2,
2021.
130. The goal of the Permanent Plan is permanent
custody with the ultimate goal of adoption by the RCGs.
The goal of adoption is in accord with the statutory
presumption that the goal of adoption in a proposed
permanent plan is in a child's best interests. HRS
§ 587A-32(a).
131. The Permanent Plan dated November 2, 2021
assists in achieving the ultimate goal of the Permanent
Plan, which is adoption by the RCGs which is an appropriate
home.
132. The Children's [Guardian ad Litem] recommended
that permanent custody be awarded to the DHS and that the
Permanent Plan dated November 2, 2021 be ordered.
. . . .
133. The DHS' social work, child protective and
child welfare assessments, opinions, and recommendations
are based on the joint expertise of the social worker and
the social worker supervisor through the social worker's
consultation with his/her supervisor and the supervisor's
supervision and approval.
134. Under the circumstances presented by the
instant case, the DHS has exerted reasonable and active
efforts to avoid foster placement of the Children.
135. Under the circumstances presented by the
instant case, the DHS has exerted reasonable and active
efforts to reunify the Children with Mother and Father by
identifying necessary, appropriate, and reasonable services
to address Mother's and Father's identified safety issues,
and making appropriate and timely referrals for these
services. Under the circumstances presented by the instant
case, the DHS gave Mother and Father every reasonable
opportunity to succeed in remedying the problems which put
the Children at substantial risk of being harmed in the
family home and to reunify with the Children. The DHS
actively encouraged Mother and Father to participate in
necessary and reasonable services to allow them to reunify
with the Children.
13
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
136. Each of the service plans offered by the DHS
and ordered by the Court were fair, appropriate, and
comprehensive.
137. None of the underlying facts and data upon
which the DHS based its opinions, assessments, and
recommendations were shown to be untrustworthy. The DHS'
continuing assessment in this case was conducted in an
appropriate manner.
. . . .
138. Luana Scanlan-Himalaya is a credible witness.
139. Dr. Lisa Garcia is a credible witness.
140. Sara Robinson is a credible witness.
141. Father's testimony is credible except for his
testimony that he is willing and able to provide a safe
family home for the Children which is not credible.
142. Mother's testimony on March 1, 2022 stipulating
to the DHS' Amended MTPR filed on November 8, 2021 was
credible.
143. It is reasonable for the DHS social worker Luana
Scanlan-Himalaya, testifying on behalf of the DHS and as an
expert witness in the areas of social work and child
protective and welfare services, to rely on facts provided
by service providers and the DHS personnel such as the DHS
social service assistants to provide the bases for her
expert opinions. The facts she used to form her expert
assessments and opinions are of a type reasonably relied
upon by experts in her field. Her testimony reflects the
DHS' expert social work and child protective and welfare
assessments and opinions in the instant case.
144. It is reasonable for Dr. Lisa Garcia,
testifying as an expert witness in the area of clinical
psychology, to rely on facts provided by her clients, the
resource caregivers, family members, the DHS and the DHS
personnel such as the DHS social service assistants to
provide the bases for her expert opinions. The facts she
used to form her expert assessments and opinions are of a
type reasonably relied upon by experts in her field. Her
testimony reflects the expert clinical psychological
assessments and opinions in the instant case.
145. These Findings of Fact are based on the Court's
evaluation of the credibility of the witnesses and the
weight of the evidence, and reflect the testimony found
credible by the Court and reasonable inferences therefrom.
14
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Father's blanket objection to the TPR Order does not
comply with RECPA Rule 11(a)(3), and it is disregarded pursuant
to HRAP Rule 28(b)(4). See RECPA Rule 1.
Father's objections to the Contested FOFs and the
Contested COLs are either waived, lack merit, or are harmless.
146. To the extent that some of the Conclusions of
Law noted below can be construed to be Findings of Fact,
said Conclusions are incorporated herein.
(Footnotes omitted).
The Contested COLs 10-14 provide:
10. The legal mother, legal father, adjudicated,
presumed, or concerned natural father, as defined under HRS
Chapter 578A, are not presently willing and able to provide
the Children with a safe family home, even with the
assistance of a service plan.
11. It is not reasonably foreseeable that the legal
mother, legal father, adjudicated, presumed, or concerned
natural father, as defined under HRS Chapter 578A, will
become willing and able to provide the Children with a safe
family home, even with the assistance of a service plan,
within a reasonable period of time.
12. [sic] Having made Conclusions of Law pertaining
to "parental unfitness" pursuant to HRS § 587A-33 (a)(1)
and (2), the Court makes the following Conclusion of Law
regarding the proposed Permanent Plan pursuant to HRS §
587A-33(a)(3).
12. The Permanent Plan dated November 2, 2021 is in
the best interests of the Children.
13. The court was not required to provide Father with
counsel because as noted in In re T.M., 131 Hawai‘i 419,
436, 319 P.3d 338, 355 (2014), Father was not found by the
court to be indigent.
14. As the court was not required to appoint counsel
for Father, there was no structural error warranting
vacatur of the Order Terminating Parental Rights filed on
March 29, 2022. In re L.I., 149 Hawai‘i 118, 122, 482 P.3d
1079, 1083 (2021).
The FOFs/COLs are misnumbered and include a second COL 12. Father
contests the second COL 12 ("The Permanent Plan dated November 2, 2021 is in
the best interests of the Children.").
15
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
As such, the Contested FOFs and Contested COLs are upheld on
appeal.7
For the foregoing reasons, we affirm the March 29,
2022 Order Terminating Parental Rights, and the May 11, 2022
Findings of Fact and Conclusions of Law, both filed and entered
by the Family Court of the First Circuit.
DATED: Honolulu, Hawai‘i, April 26, 2023.
On the briefs:
/s/ Katherine G. Leonard
Jacob G. Delaplane,
Presiding Judge
(Law Office of Jacob G.
Delaplane),
/s/ Karen T. Nakasone
for Father-Appellant.
Associate Judge
Tae Chin Kim,
/s/ Derrick H.M. Chan
for Cross-Appellant Mother.
Associate Judge
Kellie M. Kersten,
Julio C. Herrera
Deputy Attorneys General
for Petitioner-Appellee.
7 Specifically, Father's objections to FOFs 7, 111, and 123-146,
and COL 12 are waived for lack of discernable argument. RECPA Rule 1; HRAP
Rule 28(b)(7); Hussey v. Say, 139 Hawai‘i 181, 191, 384 P.3d 1282, 1292
(2016). The record contains substantial evidence to support FOFs 11-22, 83,
86, 103, 107, 107a, 108, 112, 118-19, 122; thus they are not clearly
erroneous. Any errors identified in FOFs 105, 108b, 108c, 108e and 109 are
harmless because they do not negate the substantial evidence supporting the
Family Court's termination of Father's parental rights. HFCR Rule 61. In
light of the FOFs, COLs 10 and ll, which are mixed questions of fact and law,
are not clearly erroneous. See Doe, 95 Hawai‘i at 190, 20 P.3d at 623. Any
errors in COLs 13 and 14 are harmless in light of the Family Court's
provision of fair process. See discussion supra at Section (2).
16