In re TM.Â

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Electronically Filed
Supreme Court
SCWC-12-0000521
06-JAN-2014
09:22 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
IN THE INTEREST OF TM
SCWC-12-0000521
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000521; FC-S NO. 10-002K)
January 6, 2014
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold that the failure of the Family Court of the
Third Circuit1 (the court) to appoint counsel for Petitioner/
Mother-Appellant Jane Doe (Petitioner) until nearly nineteen
months after Respondent-Appellee Department of Human Services
(DHS) filed a Petition for Temporary Foster Custody over
Petitioner’s son, T.M. constituted an abuse of discretion under
1
The Honorable Aley K. Auna, Jr. presided.
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Hawai#i Revised Statutes (HRS) § 587-342 (2006) and § 587A-173
(Supp. 2012) which necessitates vacating the court’s April 17,
2012 Order “Terminating [Petitioner’s] Parental Rights and
Awarding Permanent Custody” to DHS.4 We recognize that parents
have a substantive liberty interest in the care, custody, and
control of their children that is protected by the due process
clause of article I, section 5 of the Hawai#i Constitution.5 In
2
HRS § 587-34 provided in relevant part as follows:
The court may appoint . . . independent counsel for any []
party if the party is an indigent, counsel is necessary to
protect the party’s interests adequately, and the interests
are not represented adequately by another party who is
represented by counsel.
(Emphasis added)
3
HRS § 587A-17 provides in relevant part as follows:
The court may appoint an attorney to represent a legal
parent who is indigent based on court-established
guidelines. The court may also appoint an attorney to
represent another indigent party based on court-established
guidelines, if it is deemed to be in the child’s best
interest. Attorneys who are appointed by the court to
represent indigent legal parents and other indigent
qualifying parties may be paid by the court, unless the
legal parent or party for whom counsel is appointed has an
independent estate sufficient to pay such fees and costs.
The court may order the appropriate legal parent or party to
pay or reimburse the fees and costs of an attorney appointed
for the child or incapacitated adult.
(Emphasis added.)
4
HRS § 587-34 was replaced by HRS § 587A-17 on September 1, 2010.
Thus, HRS § 587-34 applied during the initial hearings in January, 2010, but
HRS § 587A-17 applied during the subsequent hearings.
5
Article I, section 5 of the Hawai#i Constitution provides as
follows:
Section 5
No person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal
2
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re Doe, 99 Hawai#i 522, 533, 57 P.3d 447, 458 (2002). Therefore,
we additionally hold that parents have a constitutional right to
counsel under article I, section 5 in parental termination
proceedings and that from and after the filing date of this
opinion, courts must appoint counsel for indigent parents once
DHS files a petition to assert foster custody over a child.
For the reasons set forth herein, the aforesaid April
17, 2013 Order of the Court, the “Findings of Fact [(findings)]
and Conclusions of Law [(conclusions)] re [Termination of
Parental Rights (TPR)] Hearing” entered on May 3, 2012, and the
July 26, 2013 judgment of the Intermediate Court of Appeals (ICA)
filed pursuant to its June 28, 2013 Summary Disposition Order
affirming the court’s order are vacated, and the case is remanded
for a new hearing.
I.
A.
T.M. was born to Petitioner on June 8, 2009, when
Petitioner was fifteen years old. In August, 2009, Petitioner
was “diagnosed with Psychotic Disorder, Bipolar [Disorder], Panic
Disorder, and Adjustment Disorder with Mixed Disturbance
Emotions/Conduct.” DHS filed two Petitions for Temporary Foster
protection of the laws, nor be denied the enjoyment of the
person’s civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.
(Emphasis added.)
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Custody, one over Petitioner and one over T.M., on January 6,
2010.
On January 7, 2010, the court held a hearing on the DHS
petition. At the hearing, the court advised both Petitioner’s
parents and Petitioner herself of the salutary purpose of having
a court-appointed attorney:
[The Court]: You all, the parents, have an opportunity to
either agree or disagree with the allegations. If you
disagree, that’s fine. I mean, you know, I’m not holding
anything against anyone until the evidence is presented and
I have to make a decision. It’s always wise, however, when
children are in temporary out-of-home placement, that you
have the benefit of having an attorney help you.
And if you cannot afford an attorney, then the Court may
appoint an attorney to represent you at no cost to you. All
I would need is an application to be completed. I’ll review
it, and if you qualify financially, I will appoint an
attorney to represent you. That’s always a good idea only
because there’s a lot of legal things that happen in the
courtroom that you may not be aware of or familiar with, and
having an attorney by your side is always a great benefit.
You may choose to represent yourself if you wish. That’s
fine, and I will try my best to help -- or let you know
what’s happening. I cannot give you legal advice, but at
least I can kind of give you your options, and you make your
decisions on what you want to do. You may, if you wish,
hire your own attorney. That’s up to you, but that will be
at your cost. So there’s a couple of options.
(Emphases added.) The court stated it would attempt to find one
person to act both as guardian ad litem and as an attorney for
Petitioner but suggested that having separate persons act as a
guardian ad litem and as an attorney might be necessary:
Now, [Petitioner], her situation is a little different, and
that is because she’s a minor under the law, she’s entitled
to a guardian ad litem. At the same time she is a mother, a
parent, and so she’s entitled to an attorney. I’m going to
try my best to find a person that can act in both
responsibilities. There may be, though, the situation where
she will have both an attorney and a guardian ad litem, two
people, because what the guardian ad litem may feel would be
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in her best interest may not be what she would like. So
that’s why she would need an attorney.
(Emphasis added.) The record does not indicate that Petitioner
submitted an application for court-appointed counsel at that
point.
Following the hearing, the court approved court-
appointed counsel for Petitioner’s mother and T.M.’s father.6
However, the court did not appoint counsel for Petitioner.
Instead, the court apparently had Stephanie St. John (St. John)
act as Petitioner’s guardian ad litem. At the next hearing, on
January 14, 2010, the court suggested that St. John was serving
both as Petitioner’s guardian ad litem and Petitioner’s
attorney:7
THE COURT: Okay. Very well. Ms. St. John, you’re pretty
much playing a dual role here.
MS. ST. JOHN: Well, that’s my first thing, your Honor, is
that at this point understanding that I haven’t spoken with
[Petitioner] yet, and I need to speak with her about this
stuff because if there’s going to be a difference of opinion
in working as a guardian ad litem than working as her
attorney, then I would be suggesting that she have a
separate attorney to deal with her as a mother over [T.M].
But at this point I haven’t spoken with her to find out
whether or not there is any conflict between those two
positions.
(Emphases added.) But, as indicated above, St. John did not
confirm that she was serving as Petitioner’s attorney. Instead,
6
No attorney was appointed for Petitioner’s father.
7
The “Ohana Conference Report #1” described St. John as
“[Petitioner’s guardian at litem] as well as her assigned attorney at this
time[.]” An Ohana Conference is apparently a conference between DHS, the
parties, and other resource persons for the family such as therapists or
caregivers regarding future proceedings in the case.
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St. John told the court that there might be a conflict in serving
in both capacities and she would “speak with [Petitioner]” to
determine if Petitioner desired to have “a separate attorney”.
According to finding 7 of the court’s May 3, 2013
findings and conclusions, “[f]amily court jurisdiction over
[T.M.] and his parents [including Petitioner] was established at
[the] hearing on February 10, 2010. Foster custody was awarded
to the [DHS]. For purposes of the Child Protective Act, [T.M.’s]
date of entry into foster care was February 10, 2010.” (Emphasis
in original.)
B.
A service plan hearing8 was held on March 3, 2010. The
Family Service Plan established the “initial goal” as
“[m]aintain[ing] [T.M.] in placement or in a safe family home
with his mother, [Petitioner],” and the “reunification of
[Petitioner] with her mother, or her father and his fiancé.” The
“final goal” was to “[m]aintain [Petitioner] and . . . [T.M.] in
8
The “service plan hearing” was apparently a “disposition hearing”
pursuant to HRS § 587-71 (Supp. 2006). Under the then-controlling statutory
scheme, once the ability of the family court to adjudicate a case was
established, the case was required to “be set for a further disposition
hearing concerning an appropriate service plan.” HRS §§ 587-62(3), (4) (Supp.
2006).
At the disposition hearing, the court was required to, inter alia,
“order [such] terms, conditions, and consequences to constitute a service plan
as the court determines to be in the best interests of the child.” HRS § 587-
71(I). A “service plan” is “a specific written plan prepared by an authorized
agency” setting forth, inter alia, “[t]he steps that will be necessary to
facilitate the return of the child to a safe family home.” HRS § 587-26
(Supp. 2006).
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a safe family home without the need for further DHS
intervention.” The family plan stated that the “target date” to
“maintain [Petitioner] and her son, [T.M.] in a safe family home
without the need for further DHS intervention” was February 2011.
The Plan provisions required Petitioner to “continue to
participate in services provided by [the Department of Health,
Family Guidance Center], including compliance with any prescribed
medication,” and “to make efforts to complete [her] education via
attendance at school, work on correspondence courses, and
participation in the [] Grads Program.”9 The Plan was to “remain
in effect until August 23, 2010, or further order of the court.”
The Plan also set forth “consequences,” which explained to
Petitioner that “your parental and custodial duties and rights
concerning . . . [T.M.] . . . may be terminated by an award of
permanent custody unless you are willing and able to provide . .
. [T.M.] with a safe family home within the reasonable period of
time specified in this family service plan.”
However, no provision of the Plan specified the
“reasonable period of time” in which Petitioner was required to
provide T.M. with a safe family home. The Ohana conference
report stated that “if the parents are unable to provide the
children with a safe family home within a reasonable period of
9
The Grads program is “a special program for teen mothers that
enable those mothers to attend high school and look after their babies on
campus.”
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time up to one year, even with a service plan, parental rights
may be subject to termination.” However, at the time the service
plan was filed, although HRS § 587-72 (2006) did allow DHS to
file a motion for a permanent plan hearing if the child was
outside the family home for twelve consecutive months, parents
could prevail at that hearing by demonstrating that it was
“reasonably foreseeable” that they would be able to provide the
child with a safe family home in “a reasonable period of time
which shall not exceed two years from the date upon which the
child was first placed under foster custody by the court.” HRS §
587-73 (2006) (emphasis added). This two-year requirement is
also reflected in present Hawai#i law. HRS § 587A-33(a)(2)
(Supp. 2012).
Petitioner was apparently found to have possessed
marijuana on November 30, 2010. The terms of her probation
included the requirement that she “shall not consume or possess
any alcoholic beverages, illegal drugs, non-prescribed
prescription drugs, or drug paraphernalia.”
A combined second periodic review hearing and
permanency hearing10 was held on January 26, 2011. At a
10
HRS § 587A-31 (Supp. 2012) provides in relevant part as follows:
(a) A permanency hearing shall be conducted within twelve
months of the child’s date of entry into foster care or
within thirty days of a judicial determination that the
child is an abandoned infant or that aggravated
circumstances are present. A permanency hearing shall be
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conducted at least every twelve months thereafter for as
long as the child remains in foster care under the placement
responsibility of the department or an authorized agency, or
every six months thereafter if the child remains in the
permanent custody of the department or an authorized agency.
(b) The court shall review the status of the case to
determine whether the child is receiving appropriate
services and care, that case plans are being properly
implemented, and that activities are directed toward a
permanent placement for the child.
(c) At each permanency hearing, the court shall make written
findings pertaining to:
(1) The extent to which each party has complied with the
service plan and progressed in making the home safe;
(2) Whether the current placement of the child continues to
be appropriate and in the best interests of the child or if
another in-state or out-of-state placement should be
considered;
(3) The court’s projected timetable for reunification or, if
the current placement is not expected to be permanent,
placement in an adoptive home, with a legal guardian, or
under the permanent custody of the department or an
authorized agency;
. . . .
(d) At each permanency hearing, the court shall order:
(1) The child’s reunification with a parent or parents;
(2) The child’s continued placement in foster care, where:
(A) Reunification is expected to occur within a time frame
that is consistent with the developmental needs of the
child; and
(B) The safety and health of the child can be adequately
safeguarded; or
(3) A permanent plan with a goal of:
(A) Placing the child for adoption and when the department
will file a motion to set the matter for the termination of
parental rights;
(B) Placing the child for legal guardianship if the
department documents and presents to the court a compelling
reason why termination of parental rights and adoption are
not in the best interests of the child; or
(C) Awarding permanent custody to the department or an
authorized agency, if the department documents and presents
to the court a compelling reason why adoption and legal
guardianship are not in the best interests of the child.
. . .
(g) If the child has been in foster care under the
responsibility of the department for a total of twelve
consecutive months or an aggregate of fifteen out of the
most recent twenty-two months from the date of entry into
foster care, the department shall file a motion to terminate
parental rights, unless:
(1) The department has documented in the safe family home
factors or other written report submitted to the court a
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permanency hearing, “[t]he court shall review the status of the
case to determine whether the child is receiving appropriate
services and care, that case plans are being properly
implemented, and that activities are directed toward a permanent
placement for the child.” HRS § 587A-31(b). Under HRS § 587A-
31, one of the options at a permanency hearing is for the court
to order “the child’s continued placement in foster care” if,
inter alia, “[r]eunification is expected to occur within a time
frame that is consistent with the developmental needs of the
child.” HRS § 587A-31(d).
On January 21, 2011, DHS formulated a revised family
service plan. The revised plan added the provision that
[Petitioner] “[f]ollow all the requirements of her probation,
including additional treatment needs such as substance abuse
treatment, etc.”
At the January 26, 2011 hearing both DHS and T.M.’s
guardian ad litem, Susan M. Kim (Kim), “recommended that
[Petitioner] be given more time to reunify with her son.” This
recommendation was consistent with the goals of the family plan,
compelling reason why it is not in the best interest of the
child to file a motion; or
(2) The department has not provided to the family of the
child, consistent with the time period required in the
service plan, such services as the department deems
necessary for the safe return of the child to the family
home.
(Emphases added.)
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i.e., to reunify Petitioner with either her mother or father and
to reunify T.M. with Petitioner.
At the hearing, St. John noted that she disagreed with
Petitioner regarding Petitioner completing a therapeutic home
process:
I have to state this because as her guardian ad litem, I
have to notify the Court that what I’m going to say is
different from what she wants, and I know that she wants to
go home to mom.
The problem is that my recommendation would be for her to
complete her therapeutic home process.
The court informed Petitioner that she needed to accept more
responsibility for the care of T.M. The court also approved the
revised “family service plan dated January 21st, 2011,” and
entered an order finding that “[t]he parents of [T.M.] [including
Petitioner] have partially complied with the Family Service Plan.
They have only made limited progress toward making their
respective homes safe for [T.M.]”
The court order concluded that “each party present at
the hearing understands that unless the family is willing and
able to provide the child(ren)11 with a safe family home, even
with the assistance of a service plan, within a reasonable period
of time stated in the service plan, their parental and custodial
duties and rights shall be subject to termination.” (Emphases
11
The court order refers to “children” because both Petitioner and
T.M. were minors at the time of the hearing.
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added.) The service plan did not define “a reasonable period of
time[.]”
A combined third periodic review hearing and permanency
hearing was held on May 24, 2011. At the hearing, DHS advised
that “given the time that’s passed so far,” it “would like to go
ahead and set a [termination of] parental rights [(TPR)]
hearing.”12 However, DHS agreed to wait to set the TPR motion
12
HRS § 587A-33 (Supp. 2012) provides in relevant part as follows:
§ 587A-33 Termination of parental rights hearing.
(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;
(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;
(3) The proposed permanent plan is in the best interests of
the child. In reaching this determination, the court shall:
(A) Presume that it is in the best interests of the child to
be promptly and permanently placed with responsible and
competent substitute parents and family in a safe and secure
home; and
(B) Give greater weight to the presumption that the
permanent plan is in the child’s best interest, the younger
the child is upon the child’s date of entry into foster
care; and
. . .
(b) If the court determines that the criteria set forth in
subsection (a) are established by clear and convincing
evidence and the goal of the permanent plan is for the child
to be adopted or remain in permanent custody, the court
shall order:
(1) That the child’s parent’s parental rights be terminated;
(2) Termination of the existing service plan and revocation
of the prior award of foster custody;
(3) That permanent custody of the child be awarded to an
appropriate authorized agency;
(4) An appropriate permanent plan; and
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until September. The court then stated that it would set a
hearing for September 13, 2011. The court explained that “that’s
not a trial date.”
Instead, the court related that “[t]hat’s a date to
find out where we’re going to go. The state’s going to file
their motion to terminate parental rights. We’ll hear that
motion at that time.” St. John then asserted that an attorney
was needed to represent Petitioner with regard to T.M. because
Petitioner had “never been assigned . . . an attorney in her case
involving [T.M.]”:
MS. ST. JOHN: 8:30 a.m. . . . [B]ecause I am only
(5) The entry of any other orders the court deems to be in
the best interests of the child, including restricting or
excluding unnecessary parties from participating in adoption
or other subsequent proceedings.
. . .
(d) A family member may be permitted visitation with the
child at the discretion of the permanent custodian. The
court may review the exercise of such discretion and may
order that a family member be permitted such visitation as
is in the best interests of the child.
. . .
(h) If the court determines that the criteria set forth in
subsection (a) are not established by clear and convincing
evidence, the court shall order:
(1) The preparation of a plan to achieve permanency for the
child;
(2) The entry of any orders that the court deems to be in
the best interests of the child;
(3) A periodic review hearing to be held within six months
after the date of the last permanency hearing; and
(4) A permanency hearing to be held within twelve months of
the date of the last permanency hearing.
(I) Absent compelling reasons, if the child has been in
foster care under the department’s responsibility for an
aggregate of fifteen out of the most recent twenty-two
months from the date of entry into foster care, the
department shall file a motion to terminate parental rights.
(Emphases added.)
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[Petitioner’s guardian ad litem] -- and I’ve mentioned this
several times in this case. She has never been assigned
anybody as her attorney in her case involving her child,
[T.M.]. If we are going to permanency at this point and
[Petitioner] is going to be turning 18, the suggestion is
that she apply for and look at getting her own attorney for
that case.
THE COURT: Okay. Well, maybe perhaps you can assist her in
that, I mean filling out the application. Okay?
MS. ST. JOHN: Sure.
(Emphasis added.)
On May 25, 2011 DHS filed its Motion to Set TPR
Hearing, because “[T.M.] has been in foster care . . . for an
aggregate of fifteen out of the most recent twenty-two months
from the date of entry into foster care.” On about August 31,
2011, an application for court-appointed counsel was submitted.
The application was signed by Petitioner on August 31, 2011,
prior to her eighteenth birthday.
C.
At a combined permanency hearing and termination of
parental rights hearing on September 13, 2011, Petitioner still
was not represented by counsel. The court noted that it had
received Petitioner’s application for counsel, but wanted to
check with the DHS to see if the case would be resolved by mutual
agreement before appointing an attorney. DHS informed the court
of a possible agreement with Petitioner whereby T.M.’s current
foster mother (foster mother) would become his legal guardian,
and Petitioner’s parental rights would not be terminated.
However, DHS explained that before it could commit to that
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agreement, it was “required to check out relatives who may be
interested in guardianship or adoption.” DHS also asserted that
it believed “it would be best to have an attorney for
[Petitioner],” because “this is a pretty important juncture of
the case.”
The court then asked St. John if there would be a
conflict were she appointed attorney for Petitioner. St. John
replied that such an appointment would be a conflict of interest:
MS. ST. JOHN: Your Honor, at this point I believe that it is
a conflict. There are a lot of different things that
[Petitioner] has basically not followed through with as a
mother to her son, and I don’t feel that where my position
as to what’s in her best interest really coincides with what
she needs to be doing as an adult and as a mother and for
somebody to advocate for her.
The other thing too is that when we discussed this at the
ohana conference, I was very concerned that she wasn’t
really listening to what the attorneys and the social
workers were telling her in the hearing that she needed to
hear. I think she really does need to sit down with
somebody as an attorney for her . . . and get the advice
that she needs as a mother dealing with her child, given her
and her struggles through her teenage stuff that she’s been
doing these past couple of years.
(Emphases added.) The court ruled that it “would go ahead and
appoint an attorney to represent [Petitioner].” On September 13,
2011, an order was issued appointing Joan Jackson (Jackson) as
counsel for Petitioner.
On September 20, 2011, the court again held a combined
periodic review hearing and termination of parental rights
hearing “for tracking purposes only.” Jackson appeared for the
first time at the hearing. DHS explained that it was “going to
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be checking out some relatives to see if they’re interested in a
long-term caretaker for the child.” According to DHS, “if the
relatives don’t pan out, then we’d be looking at the foster
parent as being the guardian for this child, and that would be
without terminating parental rights.” The court however, wanted
to “do the termination of parental rights now” and explained that
it “appointed [Jackson] so that she could explain to her client
that option.”
Jackson, however, related that she had “just met with
[Petitioner] this morning,” and “didn’t discuss with her
termination of parental rights because [Jackson] didn’t think
that [was] the way the case was going.” When the court again
questioned Jackson regarding Petitioner’s willingness to
terminate parental rights, Jackson reiterated that she “didn’t
really discuss it with [Petitioner],” and did not want to
“whisper[] about it for a moment in court.”
The hearing concluded to allow DHS to investigate
placement of T.M. with relatives. With regard to the potential
guardianship, the court noted that foster mother was the “only .
. . psychological family” that T.M. knew, and that it might have
an impact having the child leave foster mother for a “stranger.”
DHS stated that “the whole family liked” the option of allowing
T.M. to remain with foster mother as a guardian.
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On October 4, 2011, DHS reported that there were
possible problems with the two relatives they had targeted to
potentially adopt T.M. Petitioner’s father’s sister was not an
option because of financial difficulty. Further, T.M.’s paternal
aunt and uncle (aunt and uncle) had not returned calls from DHS.
The hearing concluded with both Petitioner and DHS stating that
they wanted to pursue a guardianship with foster mother.
Following the October 4, 2011 hearing, aunt and uncle
apparently stated that they were willing to adopt T.M. At an
Ohana Conference, foster mother “decided that she would like to
be considered as [an] alternative option, and that the primary
option should be [T.M.]’s adoption by [aunt and uncle.]” Because
foster mother indicated she would be the second option, DHS made
“adoption of [T.M.] by his aunt and uncle the first choice for
the Permanent Plan” and no longer pursued placement with foster
mother. According to DHS, T.M. would therefore be adopted
instead of placed in a guardianship and DHS would seek to
terminate Petitioner’s parental rights. Petitioner was required
to show that she could provide a safe family home for T.M.
herself in order for reunification to occur.
On December 13, 2011, a periodic review hearing was
held. At the hearing, the court noted that “we’re switching now
to adoption.” Petitioner requested that the TPR hearing be
postponed:
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[Jackson]: Now the case is about her son. So [Petitioner]
really now does not want to lose her child and does not want
to have her parental rights terminated. And because she’s
been an adult herself for just a couple of months, we’re
asking the Court for a little more time so that [Petitioner]
can do what she needs to do to provide a home for herself
and her son. She is presently going to substance abuse
treatment three times a week and will be going into the
women’s program, the in-patient BISAC program, when a bed
becomes available.
At this point we’d ask the Court not to set a hearing to
terminate parental rights but to give mother a little more
time to show everyone in this room and the Court that she is
able and willing and ready to be a full-time parent for
[T.M.] because obviously [T.M.] can’t wait for anybody else
to get their life together. However, the child is very,
very happy with the foster mother. He’s actually, according
to everyone who spoke at the ohana conference, a very well-
adjusted, happy child, who knows who all of his relatives
are and feels loved by all these people. But I think it
would be very difficult and sad for [T.M.] to suddenly be
moved to a different home and lose contact with his mother.
So I’m asking the Court for a little more time so that
Petitioner can do what she needs to do to provide a home for
herself and her son.
(Emphases added.) The court recounted that “we have a deadline
to meet according to the statute, two years from the date of
entry into foster care.” According to the court, “what that
means for the parents is that unless you can have the child back
in your home within that two-year mark . . . the child goes
elsewhere permanently.”13 The court stated that, therefore,
“February 10, 2012 [was a] deadline here that we need to make or
meet.” A review hearing, which would also serve as a pretrial
conference, was scheduled for February 7, 2012 and the TPR
hearing for March 2, 2012.
13
The court observed that “I suppose someone could make an argument
that, you know, [Petitioner] was a minor all this time and she didn’t become
an adult until recently, and therefore somehow the time is tolled.” However,
this argument was not pursued by either party.
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At the pretrial hearing on February 7, 2012, Petitioner
moved for a six-month continuance of the TPR hearing because
Petitioner had done “a tremendous turnaround”:
[Jackson]: You know, on behalf of [Petitioner], who just
turned 18 in September, I would like to say or reiterate a
couple of things and ask the Court to consider her age and
to consider the fact that recently, certainly since the last
hearing, she’s done a tremendous turn-around.
. . .
[Petitioner] feels that she’s going to lose contact with
[T.M.], that he’s going to be in Ocean View, raised by
people who probably can provide him a good home, but she’s
afraid of losing him and of losing contact with him. And as
I say, she’s very, very young. She apparently has gotten
the message that this child, you know, is her child and that
if she wants to be his mother and raise him, she has to do a
number of things to be able to provide a home for him,
including employment, earning a living, having a home, an
actual residence where she can live with him and raise him,
an ability to pay the rent and to provide for him in every
other way.
And at this point although we have the hearing scheduled in
just a few weeks, I’m asking the Court to consider delaying
that hearing and continuing it for another six months.
(Emphases added.) Petitioner further stated that she wanted to
“continue on her path to be independent and to be able to provide
a home for her son because that is really what she wants to do.”
Hence, Petitioner’s position at the February 7, 2012 hearing
apparently was that she wanted to obtain custody of T.M. in six
months.
DHS, however, asked the court to “proceed as
scheduled.” DHS said that “apparently mother has done really
well in the past few weeks,” but also felt “it’s important that
. . . pressure continue to be put [sic] in terms of trying to get
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something done because up to this point . . . [Petitioner’s]
record was really pretty bad in terms of drug use and not doing
services and not visiting.” Similarly, Kim related that
Petitioner had “only been clean for maybe about a month,” and “as
of December, she was still testing dirty[.]” The court denied
Petitioner’s motion for a continuance.
II.
A.
The TPR hearing began on March 2, 2012. At the
hearing, Petitioner took the position that the court should
“delay its ruling on the question of termination . . . for six
months” because Petitioner “has been making progress by leaps and
bounds[.]” Petitioner’s case manager, Susan McCree (McCree),
testified that Petitioner’s drug tests were “negative on
[December 30, 2011, and January 3, 6, 10, 20, and 24, 2011.]”
However, “she tested positive for marijuana on [December 16 and
21, 2011]” McCree was also “informed . . . that [Petitioner]
also tested positive about 30 days ago.”
McCree related that she would support waiting six more
months if Petitioner’s substance abuse counselor believed that
she would be able to maintain sobriety. After consulting with
Petitioner’s substance abuse counselor, McCree discovered that
Petitioner also had relapsed on alcohol “[t]his past Friday[.]”
McCree expressed concern because “if [Petitioner[] had really hit
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the point of maturity and honesty that I certainly had thought
she had,” she would have disclosed to DHS that she had relapsed
with alcohol. McCree recommended that the court pursue the
permanent adoption of T.M.
According to foster mother, Petitioner had lived in her
home along with T.M. from January 7, 2010 until approximately
August 15, 2010. After Petitioner left her home, she visited
T.M. “once a week.” Foster mother testified that her concern
with Petitioner being a full-time mother was her “consistency[.]”
Foster mother explained that she didn’t “think that at this point
[Petitioner’s] anywhere close to being . . . to be a mom 24-7.”
Foster mother related that although she was willing to
give Petitioner more time in September, she “began to see that
the changes that I had hoped would occur with [Petitioner] as far
as finding a job . . . and being able to take care of herself
were not taking place, were not happening. When she was telling
me that she was clean and sober, she in fact was not clean and
sober. So there were lies going on.”
On the other hand, Holly Lindstrom (Lindstrom),
Petitioner’s primary care counselor for substance abuse,
testified that she had “seen a change in [Petitioner] over
time[.]” Lindstrom related that Petitioner was “very motivated
to achieve sobriety[.]” She explained that “relapse is just part
of the process of people battling their addiction,” and that
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Petitioner “admitted to me that she felt like she had turned a
corner based on recognizing that she really is an addict and that
she needs to really embrace recovery.” Lindstrom felt that
Petitioner was now “taking this more seriously,” and was “willing
to try and help herself recover.”
However, Lindstrom also testified that Petitioner was
“in the early phases of recovery.” Petitioner’s recovery program
consisted of five stages, “pre-contemplative, contemplative,
preparation, action, and maitenance[.]” Petitioner was presently
in the “contemplative” stage.
Petitioner’s probation officer, Wendy Mitchell
(Mitchell) also testified that Petitioner had made significant
progress recently. Mitchell related that in “the past three,
four months, I see a very big turn-around, like 180-degree
turn-around of her for the most part. That’s mostly consistent,
you know, occasional little slips from that, but way more honest,
way more willing to admit to her slips, her relapses, the
mistakes she’s making, and just being a lot more forthcoming in
acknowledging her weaknesses and her areas of her problems.”
Mitchell also noted that Petitioner had voluntarily
admitted her recent use of alcohol both to herself and Lindstrom.
Mitchell explained that this made her feel “really positive,
really good,” because Petitioner was “being honest with
[Mitchell], and “this was something she could have gotten away
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with.” Mitchell believed that Petitioner was “committed to
working towards sobriety at this time[,] and that “her son is her
number-one priority most of the time[.]” Following questions
from the Court, Mitchell stated that Petitioner admitted that she
had received alcohol “from a young man she was cruising with[.]”
Petitioner testified that she did not feel she could
currently take care of T.M. However, she believed that she would
be able to care for him “within the next four to six months[.]”
Petitioner had recently obtained a job where she would earn
“possibly $588 to $600 a month,” and that she would use this
money to pay her rent on a studio apartment. She was planning to
complete her education at Hawai#i Community College. According
to Petitioner, she had been spending all day at foster mother’s
home with T.M. every Saturday and Sunday for “six to eight weeks
now.” Petitioner explained that she would wake up at between
four o’clock or “five o’clock in the morning” and either
hitchhike or take the bus in order to spend the entire day with
T.M.
Petitioner further stated that she was “committed” to
her substance abuse recovery program. She felt that she had a
“very good” relationship with Lindstrom.
In closing argument, Kim, T.M.’s guardian ad litem,
also requested that Petitioner’s parental rights be terminated.
She stated that “it’s indisputable” that “[Petitioner] has really
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tried to step up to the plate since the last hearing in
December,” but that “[u]nfortunately, she is still quite new in
her recovery.” Kim maintained that “a child does not wait for
his or her parents,” and “[T.M.’s] been growing for over two
years now in the system, and he does deserve a permanent home[.]”
B.
The court orally issued its decision terminating
Petitioner’s parental rights on March 16, 2012. On May 3, 2012,
the court issued its written findings and conclusions regarding
the TPR hearing. In relevant part, the court found that
Petitioner “has made positive progress and matured over the last
couple months,” but that “the evidence also indicates that
[Petitioner] lacks adequate resources and ability to care for
both herself and her son.” The court was “not confident that
[Petitioner] will be able to make lasting positive changes at any
point in the near future.”
The court therefore concluded that Petitioner was “not
presently willing and able to provide [T.M.] with a safe family
home, even with the assistance of a service plan” and that it was
“not reasonably foreseeable that [Petitioner] . . . will become
willing and able to provide [T.M.] with a safe family home, even
with the assistance of a service plan, within a reasonable period
of time to not exceed two years from [T.M.’s] date of entry into
foster case, which was on February 10, 2010.” Hence, the court
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ruled that “[t]he Permanent Plan filed with the court on December
6, 201[1] is in the best interest of the child.” Under the
permanent plan, Petitioner’s parental rights would be terminated
and T.M. would be adopted by his aunt and uncle.
III.
Petitioner appealed to the ICA. The ICA affirmed the
court’s decision to terminate Petitioner’s parental rights. The
ICA majority opinion held that the court did not abuse its
discretion “when it failed to appoint counsel to represent
[Petitioner] earlier in the proceedings.” In re T.M., No. CAAP-
12-000521, 2013 WL 3364109, at *1 (Haw. App. 2013) (SDO). The
majority noted that Petitioner “challenges none of the [court’s]
findings of fact but instead[] argues in a vague and conclusory
manner that she could have avoided termination proceedings if
counsel had been appointed sooner.” Id. However, “an
independent view of the record reveal[ed] no indication that the
lack of earlier-appointed counsel prejudiced [Petitioner’s]
substantial rights.” Id. (citing In re Doe, 99 Hawai#i at 534
n.18, 57 P.3d at 459 n.18).
In this regard, the ICA majority explained that
Petitioner did not file an application for court-appointed
counsel until September 2011, that the proceedings were not
initially adversarial in nature, and that Petitioner “was
counseled by the [court] itself on what was expected of her if
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she wanted to retain her child.” Id. at *1-2. The majority
concluded that it “[could not] hold that the court’s omission
‘[led] to [an] erroneous decision[.]’” Id. at *1 (quoting
Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S.
18, 27 (1981)).14 The ICA majority therefore affirmed the
court’s order.
Chief Judge Nakamura dissented. He noted that “both
the Family Court and the guardian ad litem recognized that
Mother’s rights and interests as a parent were distinct from and
may conflict with Mother’s rights and interests as a child.
Nevertheless, the Family Court waited until nineteen months after
T.M. was placed in foster custody before appointing counsel for
Mother.” Id. at *4 (Nakamura, C.J., dissenting). He would have
held that “the Family Court did not appoint counsel early enough
before the parental termination hearing to give Mother a fair
opportunity to defend against the DHS’s request to terminate her
parental rights.” Id. (citing In re “A” Children, 119 Hawai#i
28, 57-59, 193 P.3d 1228, 1257-59 (App. 2008)). Hence, Chief
Judge Nakamura would have “vacate[d] the order terminating
14
The ICA majority held that the court did not abuse its discretion
in refusing to continue the TPR hearing. According to the majority
“[Petitioner] was given a reasonable amount of time, more than two years,
after T.M. was placed in foster custody, to demonstrate that she was willing
and able to provide T.M. with a safe family home.” In light of our
disposition we do not reach the continuance issue.
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Mother’s parental rights and remanded the case for further
proceedings.” Id.
IV.
In her Application Petitioner asks in pertinent part
whether “counsel for an indigent minor parent[,]” such as
Petitioner, should have been appointed “to defend her parental
rights and advise her while her child remained in foster care for
more than nineteen months[.]”
V.
We hold that the court’s failure to appoint counsel for
Petitioner prior to September 13, 2012 constituted an abuse of
discretion under HRS § 587-34 and § 587A-17. Because those
statutes15 stated that the court may appoint an attorney to
represent a legal parent who is indigent, HRS § 587A-17; see also
HRS § 587-34, “discretion resided in the court as to whether to
do so[.]” In re Doe, 108 Hawai#i at 153, 118 P.3d at 63 (holding
that a statute that provided that the court “may” appoint a
guardian ad litem left the court with discretion to make an
appointment). “In reviewing a court’s exercise of discretion it
must be determined whether the court abused its discretion.” In
re Doe, 108 Hawai#I at 153, 118 P.3d at 63. “An abuse of
discretion occurs when the trial court “exceeds the bounds of
15
HRS § 587A-17 was not raised by either party.
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reason or disregards rules of principles of law or practice to
the substantial detriment of a party[.]” Id. (internal quotation
marks omitted).16
A.
The record demonstrates that the court was aware from
the inception of the proceedings that Petitioner required an
attorney in her role as mother, yet failed to appoint one until
September 13, 2011. The nineteen month delay in the appointment
of counsel for Petitioner constituted an abuse of discretion.
As noted, on January 6, 2010, DHS filed a petition to
assert temporary custody over both Petitioner and T.M. A hearing
on the Petition was held on January 7, 2010, and the court
informed all of the parties that they could file an application
for a court-appointed attorney. As to Petitioner, the court
explained that she was entitled to a guardian ad litem as a
child, and to an attorney as a mother. The court stated that it
16
In its Response to the Application, DHS maintains that the court
did not err. According to DHS, Petitioner “speculates that [she] would not
have lost her parental rights if an attorney appointed earlier had: explained
the deadlines of the Child Protective Act to [her], developed a strategy to
comply with the service plan, and/or sought out relatives to take custody of
T.M. instead of the child remaining in DHS foster custody.” DHS argues,
however, that once an attorney was appointed for Petitioner, her attorney did
not raise any of these issues. Thus, DHS maintains that “Petitioner and her
attorney determin[ed] that they were satisfactorily addressed or that they
were not significant enough to raise (thus waiving any objections).”
DHS also asserts that “[a]lthough [Petitioner] was not represented
by legal counsel during a major portion of this case, she did have an attorney
when it mattered most, the five-and-a-half months prior to the TPR hearing.”
According to DHS, “[w]hile it is true that [Petitioner] was not provided with
a court-appointed attorney until after she [became] an adult, it is also true
that [Petitioner] did not submit her application for a court-appointed
attorney until a week before her 18th birthday.”
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would try to appoint an individual to “act in both
responsibilities,” but acknowledged that there might be a
conflict if the same person was appointed to serve both roles.
After the initial hearing, the court immediately
granted the applications for a court-appointed attorney for
T.M.’s father and Petitioner’s mother. However, the court did
not appoint an attorney for Petitioner, even though it recognized
the potential conflict of having one person serving both as
guardian ad litem and as attorney. Instead, St. John was
appointed as Petitioner’s guardian ad litem. At the January 14,
2010 hearing the court told St. John that she was “playing a dual
role here.” However, St. John, rejected the assertion that she
was also serving as Petitioner’s attorney. The record does not
indicate that the court followed through with St. John to
determine whether a conflict existed between her “dual
role[s].”17
Despite the court’s recognition at the January 7, 2010
hearing that it was “a good idea” for the parties to be
represented by counsel, and that unrepresented parties would have
17
The failure to appoint counsel was not remedied by the appointment
of St. John as Petitioner’s guardian ad litem. Due to the possibility of a
conflict of interest between a guardian ad litem’s role as the advocate of the
best interests of the child and a lawyer’s role as the zealous advocate of the
client’s position, it has been explained that “it is important that [a]
guardian ad litem . . . not undertake to represent [the child] as a parent.”
Sarah Katz, When the Child is a Parent: Effective Advocacy for Teen Parents in
the Child Welfare System, 79 Temp. L. Rev. 535, 552 (Summer 2006).
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difficulty understanding the legal significance of the
proceedings, the court failed to appoint Petitioner an attorney.
Thus, Petitioner was the only primary party18 without counsel.19
At the May 24, 2011 hearing, St. John brought
Petitioner’s absence of counsel to the court’s attention.
St. John stated that she was only serving as Petitioner’s
guardian ad litem, and reminded the court that Petitioner had
never been assigned an attorney. At the same hearing, DHS
informed the court that it was going to file a motion to
terminate Petitioner’s parental rights. St. John then suggested
to the court that because the DHS sought to terminate
Petitioner’s parental rights, counsel should be appointed for
Petitioner. However, the court took no action even though it had
the discretion to appoint counsel for Petitioner. Instead, the
court left it to the guardian ad litem who had taken opposing
positions to that of Petitioner to do so.
On September 13, 2011, the court noted that it had
received Petitioner’s application for counsel but that it had
“not appointed anyone yet” because of the “possibility that this
matter is going to be resolved by way of [an agreement between
the parties regarding] a guardianship.” Thus, despite the
18
As stated before, the court also did not appoint counsel for
T.M.’s father.
19
To reiterate, DHS agreed that the court waited nineteen months to
appoint an attorney for Petitioner, while she was a minor.
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existence of ongoing negotiations among the parties, Petitioner
was left unrepresented. The court’s decision to delay the
appointment of counsel until after the outcome of the settlement
proceedings left Petitioner without a legal advocate for her
position in the crucial negotiations among Petitioner, T.M.’s
guardian, and DHS.
On September 20, 2011, only five months before the
termination hearing, Jackson appeared for the first time. The
court at several points asked Jackson if Petitioner was willing
to agree to terminate her parental rights, even though
Petitioner’s counsel had “just met with Petitioner [that]
morning.” Jackson disclosed that she “didn’t think that [the
termination of parental rights was] the way the case was going.”
Thus, it is apparent that at the September 20, 2011 hearing DHS
abandoned its original approach of guardianship without parental
rights termination, and the court shifted to asking Petitioner to
accede to the termination of her parental rights. Consequently,
it was crucial that Petitioner was provided counsel at the
inception of the proceedings to inform her of the limitations of
the guardianship approach and of the possibility that if other
options were pursued, her parental rights would be in jeopardy.
Additionally, nothing in the record demonstrates that
Petitioner was aware that she had a two-year deadline to provide
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T.M. with a safe family home under the Child Protective Act.20
The report from the first Ohana Conference incompletely stated
that Petitioner had one year to provide a safe family home for
T.M. Thus, Petitioner was without counsel to advise her of
significant deadlines.
Finally, the events following the appointment of
counsel indicate the necessity of appointing counsel for
Petitioner at the time T.M. was taken into DHS custody. At the
September 13, 2011 hearing, St. John noted that Petitioner
“wasn’t really listening to what the attorneys and the social
workers were telling her in the hearing that she needed to hear.”
Therefore, St. John believed that Petitioner “really [did] need
to sit down with somebody as an attorney for her . . . [to] get
the advice that she needs as a mother dealing with her child.”
(Emphases added.) St. John’s statement makes it clear that,
20
Although Petitioner seemingly maintains otherwise, the Family
Service Plan filed on March 3, 2010 did not violate HRS § 587A-27(a)(7) for
not informing Petitioner that “the parents’ failure to provide a safe family
home within two years from the date when the child was first placed under
foster custody by the court, may result in the parents’ parental rights being
terminated[.]” HRS § 587A-27(a)(7) did not take effect until September 1,
2010, after March 3, 2010. See 2010 Haw. Sess. Laws Act 135. Although the
two-year deadline existed under the prior statute, see HRS § 587-73, the
requirement in HRS § 587A-27(a)(7) that the family service plan “shall provide
. . . notice to the parents” of the two-year deadline was not contained in
prior Hawai#i law. See HRS § 587-26. Also, the prior statute required that a
family plan “set forth . . . the time frames during which . . . such actions
must be completed.” HRS § 587-26(c)(2). In violation of HRS § 587-26(c)(2),
the family plan in this case did not contain the requisite specific time
frames.
The revised service plan dated January 21, 2011 was subject to HRS
§ 587A-27(a)(7). That revised service plan also did not inform Petitioner of
the two-year deadline, in violation of HRS § 587A-27(a)(7).
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prior to September 13, 2011, Petitioner was not afforded legal
advice on how to maintain her parental rights to T.M.
However, following the court’s appointment of an
attorney, Petitioner’s behavior improved significantly.
Petitioner began to pass her drug tests and become more involved
in her substance abuse counseling. This was reflected in the
court’s findings after the termination hearing. The court stated
that Petitioner had “made positive progress and matured over the
last couple of months.” Petitioner made rapid strides following
the appointment of counsel.
Additionally, Petitioner had made progress in being
able to provide a safe family home for T.M. Petitioner had lived
with T.M. for eight months in foster mother’s home, and visited
once a week after August 15, 2010. Before trial, Petitioner
would wake up before 5 a.m. to travel to foster mother’s home to
spend both Saturday and Sunday with T.M. Therefore, Petitioner
had probably developed a connection with T.M. It may be that had
counsel been appointed sooner, Petitioner may have been able to
comply with the terms of the family plan and provided T.M. with a
safe family home at an earlier date.
B.
In sum, the court did not appoint counsel for
Petitioner until more than nineteen months after T.M. entered
foster custody, and only five months prior to the hearing that
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ultimately terminated Petitioner’s parental rights. The failure
to immediately appoint counsel for Petitioner even after it
became apparent that DHS would seek to terminate Petitioner’s
parental rights left Petitioner without the necessary assistance
to prepare for the March 2, 2012 termination hearing. Petitioner
was without legal guidance and did not have an advocate to
represent her in negotiations with DHS.
Because for most of the proceedings, Petitioner was the
only primary party without counsel, it was unreasonable not to
have afforded Petitioner the assistance of counsel while the
other primary parties, including DHS, were represented by
counsel. Consequently, the court abused its discretion in
failing to appoint counsel earlier in the proceedings. Thus, the
court’s April 17, 2012 Order Terminating Parental Rights and
Awarding Permanent Custody to DHS must be vacated, and the case
remanded for a new hearing.
VI.
The foregoing review of the instant case reveals the
inadequacy of an approach that allows the appointment of counsel
to be determined on a case-by-case basis once DHS moves to
assert foster custody over a child.21 In Doe, this court
21
On October 11, 2013, Amici Curiae Legal Aid Society of Hawai#i,
Hawai#i Appleseed Center for Law and Economic Justice, and American Civil
Liberties Union of Hawai#i Foundation (Amici) filed a brief in support of
Petitioner. Amici argued that “[t]he case-by-case approach to appointing
counsel imposes an impossible burden on trial judges,” because such an
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“affirmed, independent of the federal constitution, that parents
have a substantive liberty interest in the care, custody, and
control of their children protected by the due process clause of
article I, section 5 of the Hawai#i Constitution.” 99 Hawai#i at
533, 57 P.3d at 459. Doe explained that “parental rights
guaranteed under the Hawai#i constitution would mean little if
parents were deprived the custody of their children without a
fair hearing.” Id. “Indeed, ‘[p]arents have a fundamental
liberty interest in the care, custody, and management of their
children and the state may not deprive a person of his or her
liberty interest without providing a fair procedure for the
deprivation.’” Id. (quoting Hollingsworth v. Hill, 100 F.3d
733, 738-39 (10th Cir. 1997)). Doe therefore held that the
right to a “fair procedure” required the appointment of
interpreters “at family court proceedings where [] parental
approach “‘compel[s] a trial court to ‘determine in advance what difference
legal representation might make’” and “a case’s complexity might change as the
case develops.” (Quoting Lassiter, 452 U.S. at 51 n.19 (Blackmun, J.,
dissenting).) (Emphasis in original.)
Additionally, Amici maintained that the failure to appoint counsel
prior to trial can “preclude a meaningful review of a denial of counsel by the
appellate court,” because “‘a parent acting pro se is . . . likely to be
unaware of controlling legal standards and practices, and unskilled in
garnering relevant facts.’” (Quoting Lassiter, 452 U.S. at 51 n.19 (Blackmun,
J., dissenting).) Therefore, a parent acting pro se is unlikely to develop a
record sufficient to allow meaningful appellate review.
Finally, as to the court’s statement that it was considering St.
John as both Petitioner’s attorney and guardian ad litem, Amici assert that
“such attempt at dual-capacity representation would have been ineffective” due
to obvious conflicts of interest. For example, “‘the guardian ad litem may
have intimate knowledge of the teenager’s mistakes or foibles which could be
used against her in determining whether her child is to be adjudicated
dependent.’” (Quoting Katz, When the Child is a Parent 79 Temp. L. Rev. at
552.)
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rights are substantially affected.” 99 Hawai#i at 534, 57 P.3d
at 460.
In In re “A” Children, the ICA held that the court’s
failure to timely appoint counsel resulted in the father not
receiving notice of hearings. 119 Hawai#i at 58, 193 P.3d at
1258. Judge Watanabe, writing for the ICA, pointed out that
this created “a chain of events” that led to the termination of
his parental rights and “that could have been broken if Father
had had counsel.” Id. The ICA applied the case-by-case
approach adopted by a majority of the Supreme Court in Lassiter,
where that court balanced the parent’s interests, the state’s
interests, and the risk that a parent will be erroneously
deprived of his or her child. Id. at 57, 193 P.3d at 1257. The
ICA concluded that the dispositive factor was the third factor,
and ruled that the “belated appointment of an attorney created
an appreciable risk [the father] would be erroneously deprived
of his parental rights[.]” Id. at 58, 193 P.3d at 1258.
However, the ICA “express[ed] grave concerns . . .
about the case-by-case approach adopted in Lassiter for
determining the right to counsel.” Id. at 60, 193 P.3d at 1260.
According to the ICA, “as Justice Blackmun observed,” under the
case-by-case approach, “[a] trial judge will be required to
determine in advance what difference legal representation might
make.” Id. (quoting Lassiter, 451 U.S. at 51 n.19 (Blackmun,
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J., dissenting). The ICA then concluded that “the
Lassiter dissents present compelling arguments for a bright-line
rule regarding the provision of counsel in termination-of-
parental rights cases[.]” Id.
In RGB, an indigent parent asserted that her court-
appointed counsel was ineffective. 123 Hawai#i at 17, 229 P.3d
at 1082. Because the family court-appointed counsel, the RGB
majority “decline[d] to reach the question of whether the
Hawai#i Constitution provides indigent parents a right to
counsel in all termination proceedings.” Id. at 18, 229 P.3d at
1083.22
B.
Inherent in the substantive liberty interest that
parents have in the care, custody, and control of their children
under the Hawai#i Constitution is the right to counsel to
prevent erroneous deprivation of their parental interests. As
Justice Stevens asserted in Lassiter, the State’s decision to
deprive a parent of his or her child is often “more grievous”
than the State’s decision to incarcerate a criminal defendant.
22
The dissenting opinion explained that counsel was ineffective for
“failing to file a timely motion for reconsideration of the court’s
Termination Order,” and the late appointment by the family court of counsel
left Petitioner’s counsel with only “two days in which to file a timely motion
for reconsideration.” RGB, 123 Hawai#i at 62, 229 P.3d at 1127 (Acoba, J.,
dissenting). The dissent concluded that as “the right to effective assistance
of counsel is protected under the Hawai#i Constitution . . . the majority’s
opinion implicate[d] [the parent’s] due process right to effective counsel
under the Hawai#i Constitution.” Id. at 50, 229 P.3d at 1115 (internal
emphasis removed).
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Lassiter, 452 U.S. at 59 (Stevens, J., dissenting). Hence, “the
reasons supporting the conclusion that the Due Process Clause .
. . entitles the defendant in a criminal case to representation
by counsel apply with equal force” in cases where the state
seeks to terminate parental rights. Id. (emphasis added).
This court has held that “[t]he right to counsel is an
essential component of a fair trial” in the criminal context.
State v. Tarumoto, 62 Haw. 298, 299, 614 P.2d 397, 398 (1980).
The same considerations suggest that an attorney is necessary
for a “fair procedure” in parental termination proceedings. See
Doe, 99 Hawai#i at 534, 57 P.3d at 460; see also RGB, 123 Hawai#i
at 47, 229 P.3d at 1112 (Acoba, J., dissenting) (stating that an
attorney should be provided in termination hearings in light of
the “constitutionally protected liberty interest at stake”).
Furthermore, as Justice Blackmun explained in
Lassiter, a parent in termination proceedings may struggle with
legal issues that are “neither simple nor easily defined,” and
with a standard that is “imprecise and open to the subjective
values of the judge.” 452 U.S. at 45 (Blackmun, J.,
dissenting). A parent must “be prepared to adduce evidence
about his or her personal abilities and lack of fault, as well
as proof of progress and foresight as a parent[.]” Id. at 46.
They are faced “with an adversary -- the State -- that commands
great investigative and prosecutorial resources, with standards
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that involve ill-defined notions of fault and adequate
parenting, and with the inevitable tendency of a court to apply
subjective values or to defer to the State’s ‘expertise.’” Id.
In Matter of K.L.J., 813 P.2d 276 (Alaska 1991), the
Alaska Supreme Court held that counsel is necessary in
termination proceedings because “‘the crucial determination
about what will be best for the child can be an exceedingly
difficult one[,] . . . it requires a delicate process of
balancing many complex and competing considerations that are
unique to every case.’” Id. at 282 (quoting Flores v. Flores,
589 P.2d 893, 896 (Alaska 1979)). Thus, “a parent cannot
possibly succeed” without “the guiding hand of counsel.”
Lassiter, 452 U.S. at 46 (Blackmun, J., dissenting). Hence, the
appointment of an attorney is crucial to ensure that parents are
provided a “fair procedure.” See Doe, 99 Hawai#i at 533, 57
P.2d at 458.
Doe held that an interpreter was necessary where
“parental rights are substantially affected.” 99 Hawai#i at
534, 57 P.2d at 459. In the context of the Child Protective
Act, the filing of a petition to assert custody initiates the
termination process. As stated before, once a child is “is in
foster care under the department’s responsibility” for an
aggregate of fifteen of twenty two months, DHS must file “a
motion to terminate parental rights.” HRS § 587A-33(I). At a
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termination hearing, parents must establish that they can
provide a safe family home within two years of the child’s entry
into foster care. HRS § 587A-33(a)(2). However, before the
termination hearing itself, issues that may be decisive in that
proceeding may have been determined subsequent to DHS attaining
custody of the child. Thus, as soon as DHS files a petition
asserting custody over a child, parents’ rights are
“substantially affected.” At that point, an attorney is
essential to protect an indigent parent’s liberty interest in
the care, custody and control of his or her children.23
VII.
Mandating the appointment of counsel for indigent
parents once DHS moves for custody would remove the vagaries of
a case-by-case approach. As mentioned before, under the case-
by-case approach, “‘it will not always be possible for the trial
court to predict accurately, in advance of the proceedings, what
facts will be disputed, the character of cross-examination, or
23
In contrast to the federal rule, see Scott v. Illinois, 440 U.S.
367, 373-74 (1979), indigent criminal defendants in Hawai#i have a right to an
attorney whenever they are threatened by imprisonment, even if imprisonment is
not subsequently imposed. State v. Dowler, 80 Hawai#i 246, 249, 909 P.2d 575,
577 (App. 1995). The ICA pointed out in Dowler that, because the “Hawai#i
Constitution requires that ‘[t]he State shall provide counsel for an indigent
defendant charged with an offense punishable by imprisonment,’” “an indigent
criminal defendant’s right to appointed counsel is determined not by whether
imprisonment is actually imposed.” Id.
Thus, in Hawai#i, the appointment of counsel is mandated because
attempting to determine in advance of the proceedings whether legal
representation would ultimately be required is an exercise in futility. The
safeguard for parental rights thus rests on the appointment of counsel at the
beginning of proceedings, in the instant case in February, 2010, when T.M. was
taken into custody by DHS.
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the testimony of various witnesses.’” Matter of K.L.J., 813
P.2d at 282 n.6 (quoting Kevin W. Shaughnessy, Note, Lassiter v.
Department of Social Services: A New Interest Balancing Test for
Indigent Civil Litigants, 32 Cath. U.L. Rev. 261, 282-83 (1982)
(hereinafter Note, A New Interest Balancing Test); accord RGB,
123 Hawai#i at 49, 229 P.3d at 1114 (quoting K.L.J.). Hence, in
a case-by-case approach, there is a “‘possibility that
appointment of counsel will be denied erroneously by the trial
court.’” Matter of K.L.J., 813 P.2d at 282 n.6 (quoting
Shaughnessy, Note, A New Interest Balancing Test, at 282-83).24
Similarly, “‘the case-by-case approach . . . does not
lend itself practically to judicial review.’” Id. (quoting
Shaughnessy, Note, A New Interest Balancing Test, at 282-83).
“‘[T]he reviewing court must expand its analysis into a
cumbersome and costly, time-consuming investigation of the
24
Under Mathews v. Eldridge, 424 U.S. 319 (1976) courts must
consider the parent’s interests, the state’s interests, and “the risk that a
parent will be erroneously deprived of his or her child because the parent is
not represented by counsel.” Lassiter, 452 U.S. at 27-28. However, “weighing
the [Mathews] factors on a case-by-case basis will always come out in favor of
appointing counsel under the Hawai#i Constitution.” RGB, 123 Hawai#i at 47,
229 P.3d at 1112 (Acoba, J., dissenting) (emphasis in original).
As to the first factor, “‘a parent’s desire for and right to the
custody of his or her children is an important interest that undeniably
warrants deference and, absent a powerful countervailing interest,
protection[.]’” RGB, 123 Hawai#i at 47, 229 P.3d at 1112 (Acoba, J.,
dissenting) (quoting Lassiter, 452 U.S. at 27) (internal punctuation removed).
As to the second factor, the State’s interests weigh “largely in favor of
appointing counsel,” inasmuch as “‘the State has an urgent interest in the
welfare of the child[.]’” Id. (quoting Lassiter, 452 U.S. at 27) (emphasis in
original). Finally, as to the third factor, “the risk of erroneous
deprivation is undeniably present in every case.” Id. Therefore, even if the
Mathews test is applied, counsel should always be appointed under the Hawai#i
Constitution.
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entire proceeding.’” Id. (quoting Note, A New Interest
Balancing Test, at 282-83). Moreover, the harm suffered by
parents proceeding without counsel may not be readily apparent
from the record, especially because without the aid of counsel,
it is unlikely that a case is “adequately presented.” Lassiter,
452 U.S. at 51 (Blackmun, J., dissenting).
Additionally, real human costs are sustained by all of
the parties when, as in the instant case, the court’s failure to
appoint counsel results in a remand for further proceedings.
Under such circumstances, the court’s ultimate determination
regarding a child’s placement may be significantly delayed.
Both parents and children face continued uncertainty regarding
parental status and a child’s future. These costs would be
mitigated by a rule cognizant of the reality that counsel is
essential to ensuring that parents are provided a “fair
procedure.” See Doe, 99 Hawai#i at 533, 57 P.3d at 459.
In sum, difficulties stemming from the case-by-case
approach can result in the erroneous termination of parental
rights.25 Thus, in light of the constitutionally protected
liberty interest at stake in a termination of parental rights
proceeding, we hold that indigent parents are guaranteed the
25
At oral argument, all the parties agreed with mandating the
appointment of counsel in the future. Petitioner explained that there was “no
downside” to a rule requiring the appointment of counsel. Similarly, the DHS
concurred that a prospective rule would “serve the interests of justice.”
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right to court-appointed counsel in termination proceedings26
under the due process clause in article I, section 5 of the
Hawai#i Constitution. We direct that upon the filing date of
this opinion, trial courts must appoint counsel for indigent
parents upon the granting of a petition to DHS for temporary
foster custody of their children.27
VIII.
Based on the foregoing, the court’s April 17, 2012
order terminating parental rights, the May 3, 2012 findings and
conclusions “re TPR Hearing”, and the July 26, 2013 judgment of
the ICA filed pursuant to its June 28, 2013 Summary Disposition
Order affirming the court’s order are vacated, and the case is
remanded to the court for a new hearing consistent with this
opinion.
Benjamin E. Lowenthal, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Nolan Chock,
(with Mary Anne Magnier /s/ Simeon R. Acoba, Jr.
on the briefs),
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
26
Our decision does not render HRS § 587A-17, which allows courts
the discretion to appoint counsel on a case-by-case basis, unconstitutional.
Rather, our decision augments HRS § 587A-17 in recognition of the due process
protection in the Hawai#i Constitution afforded to parents. Doe, 99 Hawai#i at
533, 57 P.3d at 459.
27
We do not address the circumstances under which the right to
counsel could be waived.
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