In re: CH

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2021
07:49 AM
Dkt. 99 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF CH
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-S No. 19-00064)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Respondent-Appellant Father appeals from the Order
Terminating Parental Rights (Termination Order), entered November
13, 2020, in the Family Court of the First Circuit (Family
Court).1 In the Termination Order, Father's parental rights to
his child (Child) were terminated and a permanent plan with the
goal of adoption was approved. On December 30, 2020, the Family
Court entered Findings of Fact and Conclusions of Law (FOFs and
COLs) regarding the Termination Order.
1
The Honorable Jessi L.K. Hall presided.
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On appeal, Father challenges FOFs 98, 105,2 106, 108,
and 110-113,3 and contends that (1) there was not clear and
convincing evidence that "it was not reasonably foreseeable" that
Father "would become willing and able to provide a safe family
home within a reasonable period of time;" (2) Petitioner-Appellee
State of Hawai#i, Department of Human Services (DHS) "did not
exert reasonable nor active efforts to reunify Father with
[Child];" and (3) the Permanent Plan (Permanent Plan) "was not in
[Child's] best interest."
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Father's contentions as follows, and affirm.
Hawaii Revised Statutes (HRS) § 587A-33(a) (2018)
governs the termination of parental rights and provides in
relevant part as follows:
(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; [and]
2
Father did not present argument to support his challenge to FOF
105, and we do not address it. FOF 105 stated: "Father is not presently
willing and able to provide the Minor with a safe family home, even with the
assistance of a service plan."
3
FOF 110 does not make a factual finding but merely introduces FOFs
111-113, stating that the Family Court "makes the following findings regarding
the Permanent Plan dated January 28, 2020." FOF 110 is not clearly erroneous.
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(3) The proposed permanent plan is in the
best interests of the child.
"Generally, the family court possesses wide discretion in making
its decisions and those decisions will not be set aside unless
there is a manifest abuse of discretion." In re Doe, 95 Hawai#i
183, 189, 20 P.3d 616, 622 (2001) (citations, quotation marks,
and ellipsis omitted).
[T]he family court's determinations . . . with
respect to (1) whether a child's parent is willing and
able to provide a safe family home for the child and
(2) whether it is reasonably foreseeable that a
child's parent will become willing and able to provide
a safe family home within a reasonable period of time
present mixed questions of law and fact; thus,
inasmuch as the family court's determinations in this
regard are dependant upon the facts and circumstances
of each case, they are reviewed on appeal under the
clearly erroneous standard. Likewise, the family
court's determination of what is or is not in a
child's best interests is reviewed on appeal for clear
error.
Moreover, the family court is given much leeway
in its examination of the reports concerning a child's
care, custody, and welfare, and its conclusions in
this regard, if supported by the record and not
clearly erroneous, must stand on appeal.
Id. at 190, 20 P.3d at 623 (citations, quotation marks, and
brackets omitted).
The family court's FOFs are reviewed on appeal
under the clearly erroneous standard. A FOF is
clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2)
despite substantial evidence in support of the
finding, the appellate court is nonetheless left with
a definite and firm conviction that a mistake has been
made. Substantial evidence is credible evidence which
is of sufficient quality and probative value to enable
a person of reasonable caution to support a
conclusion.
Id. (citations, quotation marks, and ellipsis omitted).
Unchallenged findings of fact are binding on appeal. In re Doe,
99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
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(1) Father primarily contends that FOF 106 was not
supported by clear and convincing evidence. FOF 106 states: "It
is not reasonably foreseeable that Father will become willing and
able to provide a safe family home, even with the assistance of a
service plan, within a reasonable period of time not to exceed
two (2) years from the Minor's date of entry into foster care on
March 13, 2019." In his argument that there was no substantial
evidence in the record that he was not willing and able to
provide Child a safe family home within a reasonable time period,
Father specifically claims that: DHS and the Guardian ad Litem
(GAL) were looking to move towards "family supervision" with
Father, but they "changed their tune" when Father relocated to
Louisiana; and there was "no substantial evidence in the record"
that Father "posed a risk of harm" to Child.
This contention is without merit. The record reflects
substantial evidence that it was not reasonably foreseeable that
Father would become willing and able to provide Child a safe
family home and to do so within a reasonable period of time. See
Doe, 95 Hawai#i at 189, 20 P.3d at 622. The following evidence
supported the Family Court's conclusion: the October 23, 2019
Closing Report from the service provider, indicates that Father
voluntarily terminated services upon relocating to the mainland
in October 2019, and prior to relocating, Father attended only
eight of fifteen visits with Child and six of twelve outreach
sessions; the DHS Social Worker testified at trial that Father
permanently relocated to Louisiana without first notifying DHS,
while Child remained in Hawai#i, see FOFs 82, 99-100; Father
declined the DHS Social Worker's February 14, 2020 offer to refer
services and a courtesy social worker in Louisiana, and he did
not request another referral until September 2020, see FOF 85;
Father "stipulated to participate in each of the court ordered
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service plans," FOF 61, but he failed to complete his services
and visits as set forth in the service plans, see FOFs 73-76, 80,
89-90; Father failed to call or appear for any virtual visits
with Child in October 2020; and Father did not submit paperwork
for his home in Louisiana under the Interstate Compact on the
Placement of Children (ICPC), but instead indicated his
preference was for Child's paternal grandmother (Grandmother) in
Alabama to adopt Child, see FOFs 16c, 103, 104.
As to Father's claim that there was no substantial
evidence in the record that he "posed a risk of harm" to Child,
the Family Court found that "[o]n May 16, 2019, Father stipulated
to the adjudication of the harms alleged in the Petition," see
FOF 36; and Father did not move to reconsider the May 16, 2019
Orders Concerning Child Protective Act, which stated that "there
is an adequate basis to sustain the [P]etition in that [Child's]
physical or psychological health or welfare has been harmed or is
subject to threatened harm by the acts or omissions" of Father.
Thus, there was substantial evidence in the record
supporting the Family Court's conclusion that Father would not be
willing and able to provide Child a safe family home within a
reasonable time period, even with the assistance of a service
plan. FOF 106 is not clearly erroneous, and Father's first
contention is without merit. See Doe, 95 Hawai#i at 189, 20 P.3d
at 622.
(2) Father next contends that he was not given a
reasonable opportunity to reunify with Child because DHS did not
make reasonable or active efforts to do so, and that DHS failed
to "identify necessary, appropriate, and reasonable services to
address the identified safety issues/problems and failed to make
appropriate and timely referrals for these services." Father
challenges FOFs 98 and 108, which state:
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98. Under the circumstances present in this case,
Father was given every reasonable opportunity to effectuate
positive changes to provide a safe family home and to
reunify with the Minor. However, Father knowingly and
voluntarily relocated to Louisiana while the Minor remained
in Hawai#i.
. . . .
108. Father's representation that the DHS did not
make reasonable efforts to reunify him with the Minor is not
supported by the credible evidence in the record.
Father argues that DHS failed to make reasonable efforts to
reunify him with Child after he permanently relocated to
Louisiana, specifically, that DHS failed to refer Father to
services after he relocated to Louisiana in October 2019, until
he raised the issue at the February 12, 2020 hearing; and that
DHS made no referrals from October 2019 to November 2020.
FOFs 98 and 108 are supported by the DHS Social
Worker's testimony that she referred Father to services while he
resided in Hawai#i, but Father failed to complete them because he
moved to the mainland; Father permanently relocated without
notifying DHS, see FOFs 82 and 99-100; and she contacted Father
on February 14, 2020, offering a referral for services and a
courtesy social worker in Louisiana, but Father declined and did
not request another referral until September 2020, see FOF 88.
FOF 108 is not clearly erroneous.
The record reflects that DHS made reasonable efforts to
contact Father and to refer him for services after he relocated,
but Father either failed to respond or expressly declined a
referral offer, see FOFs 82, 84-88, 100, which Father does not
dispute on appeal:
82. Father permanently relocated to the state of
Louisiana in late October 2019 without first informing
the DHS.
. . . .
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84. On October 18, 2019, [DHS Social Worker]
telephoned Father after learning from the PACT service
provider that Father had stopped participating in
services because he either had moved or was planning
to move to the mainland. Father did not answer the
phone, [DHS Social Worker] left a message, and Father
did not return her phone call.
85. On February 14, 2020, [DHS Social Worker]
telephoned Father and was able to reach him. [DHS
Social Worker] offered to contact the social services
department in New Orleans, Louisiana, but Father
declined. Father told [DHS Social Worker] that he
knew the consequences of not completing the family
service plan.
86. On March 10, 2020, [DHS Social Worker]
telephoned Father to discuss the permanent plan,
Father did not answer the phone, and [DHS Social
Worker] left a message.
87. Father testified that he never spoke to [DHS
Social Worker] about engaging in services while in
Louisiana and denied telling her that he did not want
a courtesy worker. Father's testimony on these points
was not credible.[4]
88. Father did not request to be referred to
services or for a courtesy social worker [from the
time he left Hawai#i] until September 2020.
. . . .
100. Father did not contact the DHS after he
left the State of Hawai#i. Rather, it was [DHS Social
Worker] who initiated contact with Father. Without
notice DHS was unable to timely transfer services.
(Emphases added.) Father's argument in this regard is without
merit.
Father also argues that COVID-19 "affected Father's
ability to travel" to participate at the trial, and he was denied
his due process right to a fair trial when he was "den[ied]
assistance . . . to allow him to appear in-person for trial."
4
"[I]t is well-settled that an appellate court will not pass upon
issues dependent upon the credibility of witnesses and the weight of the
evidence; this is the province of the trial judge." State v. Gella, 92
Hawai#i 135, 142, 988 P.2d 200, 207 (1999).
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Father presents no legal authority for his contention that DHS
should pay travel expenses for a parent who voluntarily left the
jurisdiction to appear for trial, nor does he present any
argument showing that he was denied an opportunity to be heard or
to present testimony and other evidence at trial. See Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b)(7); Taomae v.
Lingle, 108 Hawai#i 245, 257, 118 P.3d 1188, 1200 (2005)
(declining to address the appellant's due process argument as it
did not "contain any reasoning, supported by citations to case
law or authority to constitute a discernible argument").
Regardless, the record reflects that Father attended and
testified at the trial via Webex, and the Family Court found that
Father's counsel "competently" and "zealously represented Father"
at the trial. See FOF 6. Father's contention in this regard is
without merit.
(3) Father's last contention is that terminating his
parental rights and supporting a permanent plan for adoption was
not in Child's best interests because "[c]hildren deserve a
meaningful opportunity to be reunited with their parents in a
safe family home," and DHS failed to give Father that opportunity
when it stopped its reasonable efforts to reunify Father and
Child and failed to complete an ICPC on Grandmother's home, which
"would have aided in reunification for Father." Father
challenges FOFs 111-113 which state:
111. The goal of the Permanent Plan is permanent
custody of the Minor with eventual adoption as it is in the
best interest of the Minor, given the Minor's young age, the
Minor's need for permanency, and the statutory presumption
in favor of children being promptly and permanently placed
with responsible and competent substitute parents and
families in safe and secure homes; the presumption being
given greater weight the younger the Minor's age upon the
date of entry into foster care. In this case, the Minor was
11 days old on March 13, 2019, her date of entry into foster
care.
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112. The Minor's GAL stated her agreement that the
Permanent Plan dated January 28, 2020 with the ultimate goal
of adoption is in the Minor's best interest.
113. [DHS social worker] testified and the Court finds
that the Permanent Plan dated January 28, 2020, with the
ultimate goal of adoption is in the Minor's best interest.
FOF 111 comes directly from the language of the
Permanent Plan and HRS Chapter 587A. Specifically, the Permanent
Plan identifies a goal of termination of parental rights5 and
adoption by Grandmother, with adoption by Foster Parents as an
alternative, and HRS § 587A-33(a)(3) requires the Family Court
to:
(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 . . . .
Thus, FOF 111 is not clearly erroneous.
FOF 112 is supported by the GAL's argument at trial
that termination of parental rights and adoption is in Child's
best interests, specifically: that "it's presumed to be in the
best interest of the child to be promptly and permanently placed
with responsible and competent substitute parents and family in a
safe and secure home," and Child "has that" with Foster Parents;
that greater weight should be given to this presumption of the
best interest of the child being promptly and permanently placed
in a responsible and competent home "when a child is younger upon
the date of the child's entry into foster care," and that Child
has been with Foster Parents since shortly after her birth; and
5
HRS § 587A-4 (2018) defines "Permanent custody" as "the legal
status created by order of the court after the termination of parental rights
as set forth in this chapter."
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that the Family Court should grant the motion to terminate
parental rights. FOF 113 is supported by the DHS Social Worker's
testimony that DHS's position is that the Permanent Plan is in
Child's best interest. Thus, FOFs 112 and 113 are not clearly
erroneous.
The record reflects that DHS and the Family Court
provided Father a meaningful opportunity to reunite with Child;
however, he failed to demonstrate that he could provide a safe
family home. See FOF 6. The Family Court found that the ICPC
for placement with Grandmother was denied due to Grandmother's
decision not to complete the ICPC process. See FOF 103.
Therefore, the record does not support Father's assertion that
placement with Grandmother would have aided in reunification,
where placement with Grandmother was never approved.
Moreover, the DHS Social Worker testified that she
believed the Permanent Plan was in Child's best interest, and the
Permanent Plan's goal of adoption is consistent with statutory
presumptions in HRS § 587A-33(a)(3)(A) and (B), which,
respectively, "[p]resume 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 "[g]ive 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."
(Emphases added.) Given that Child entered into foster care when
she was eleven days old, the presumption that adoption is in her
best interest had greater weight under the statute. Thus,
substantial evidence in the record supports the Family Court's
determination that the permanent plan for adoption was in Child's
best interest. Thus, Father's contention is without merit. See
Doe, 95 Hawai#i at 189, 20 P.3d at 622.
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Finally, we note that Father briefly asserts that FOFs
91 through 97 are in error, but he provides no particular
argument as to these findings. Based on our review of the
record, these findings are not clearly erroneous.
Therefore, IT IS HEREBY ORDERED that the November 13,
2020 Order Terminating Parental Rights entered in the Family
Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, June 17, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Crystal M. Asano Chief Judge
for Father-Appellant
/s/ Katherine G. Leonard
Abigail S. Dunn Apana Associate Judge
Julio C. Herrera
Deputy Attorneys General /s/ Karen T. Nakasone
for Petitioner-Appellee Associate Judge
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