In re: J.M. and Z.M.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUL-2021
08:05 AM
Dkt. 95 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
IN THE INTEREST OF J.M. and Z.M., Minors
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(FC-S NO. 19-00007)
JULY 27, 2021
GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.
OPINION OF THE COURT BY LEONARD, J.
In many ways, this termination of parental rights case
follows an unfortunate, but familiar, pattern. Parents are both
on drugs and are unable to provide their children with a safe
family home. The State gets involved, but parents do not comply
with mandatory drug testing, continue to test positive for drugs,
otherwise fail to complete or delay getting through a substance
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abuse treatment program and other services, and skip court
hearings. The parents' parental rights are then terminated and
permanent custody of their children is awarded to the State.
No matter what circumstances bring parents before a
court, however, indigent parents are guaranteed the right to
court-appointed attorneys in termination proceedings under the
due process clause of the Hawai#i Constitution, as well as the
Fourteenth Amendment of the United States Constitution. Here, we
hold that such an attorney is essential throughout proceedings
that could result in the termination of parental rights. As the
Hawai#i Supreme Court recently held, representation is so
essential that failure to provide counsel to indigent parents
facing possible termination of their parental rights is
structural error that cannot be deemed harmless error. We
further hold that, in this case, the discharge of the father's
attorney during the pendency of these proceedings, prior to the
family court's decision on a motion to terminate his parental
rights, violated the father's due process rights and was
structural error. Accordingly, the order that terminated his
parental rights must be vacated, without the necessity of proving
harmful error.
Appellant-Mother (Mother) and Cross-Appellant-Father
(Father) appeal from the Decision and Order Terminating the
Parental Rights of [Father] and [Mother] and Awarding Permanent
Custody [HRS 587A] (Order Terminating Parental Rights), filed on
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December 7, 2020, in the Family Court of the Fifth Circuit
(Family Court).1 The Order Terminating Parental Rights
terminated Mother and Father's parental rights to their two
children, JM and ZM (Children).
I. BACKGROUND
On April 16, 2019, Petitioner-Appellee-Cross-Appellee
The Department of Human Services (DHS) filed a Petition for
Temporary Foster Custody for custody of the Children (Foster
Custody Petition). DHS alleged that the Children were subject to
imminent harm, harm, or threatened harm because their parents'
substance abuse affected their ability to supervise, protect, or
care for the Children. The Foster Custody Petition was supported
by a Safe Family Report and a Family Service Plan, both dated
April 18, 2019, and received into evidence.
By orders of the Family Court dated April 22, 2019, and
entered on April 24, 2019, separate attorneys were appointed to
represent Mother and Father, effective as of April 18, 2019.
Appointed counsel for Mother and Father were orally named at an
April 18, 2019 hearing before the Family Court, and Parents
requested a continuance to meet with their respective counsel,
which was granted. The Children had been placed in police
protective custody on April 11, 2019, DHS was temporarily awarded
foster custody, and a May 2, 2019 return date was set.
1/
The Honorable Edmund D. Acoba presided.
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In conjunction with the Foster Custody Petition and
related Safe Family Report, DHS reported that it had received a
report on August 14, 2018, that Mother, Father, and other adults
in the home were using drugs in the presence of the Children and
that one child had stepped on a burning piece of amphetamine in
the home. After a preliminary investigation and interviews, a
DHS social worker requested that Mother and Father complete
urinalyses after the social worker's visit with them. They said
that they could not go that day because they were busy with
errands; they requested to complete drug testing later. Mother
failed to show for drug tests on March 8, 14, and 22, 2019.
Father failed to show for a drug test on March 8, 2019. Mother
was unable to produce a urine sample on March 13 and 15, 2019.
Father tested positive for methamphetamine and amphetamine on
March 13, 2019. On March 29, 2019, both parents failed to meet
with DHS and did not maintain contact with DHS. DHS further
reported that parents had heated verbal altercations and that the
Children hide under the blankets when the arguments occur, that
parents were evasive and refused to allow DHS access to the
family home, and that on April 11, 2019, the police were called
to assist DHS to assess the Children's safety. As noted, the
Children were then placed in police protective custody.
Subsequent to the filing of the Foster Custody
Petition, Mother and Father were directed in the initial Family
Service Plan to participate in random drug testing. On May 2,
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2019, it was reported that Mother tested positive for
methamphetamine and Father admitted to using methamphetamine and
tested positive for "OXY," which he attributed to prescribed
Percocet. On May 16, 2019, it was reported that Mother tested
positive for methamphetamine. On June 4, 2019, it was reported
that Mother and Father did not show up for drug tests on April
22, May 2, May 6, May 14, May 23, and May 28, 2019. A no show is
considered to be the same as a positive test.
On June 18, 2019, the Family Court entered an Order
Establishing Jurisdiction and Awarding Foster Custody [HRS 587A]
in which the Family Court awarded DHS foster custody of the
Children as of June 13, 2019.
On July 3, 2019, it was reported Mother and Father did
not show up for drug tests on June 3, 13, 18, and 27, 2019.
A July 16, 2019 assessment of Father stated he had a
Moderate Methamphetamine Use Disorder and it was recommended he
complete Intensive Outpatient Treatment and Aftercare.
On July 19, 2019, the Family Court entered an Order
Establishing a Family Service Plan [HRS 587A] which ordered
parents to follow a service plan dated April 18, 2019 (April 2019
Service Plan). The April 2019 Service Plan required Mother and
Father to participate in substance abuse treatment and
management, including random drug tests, a psychological
evaluation and any recommended services, including parenting
education.
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On August 7, 2019, it was reported that Father did not
show up for drug tests on July 2, 8, 16, 25, and 30, 2019, that
Mother did not show up for drug tests on July 2 and 30, 2019, and
that Mother tested positive for methamphetamine and amphetamine
on July 11, 2019.
Father's August 15, 2019 Clinical Psychological
Evaluation stated that Father believed removal of the Children
was unwarranted and parents' drug use away from the Children was
less of a concern than if it was done in the home. The
evaluation stated that Father's "treatment prognosis is guarded
due to his ambivalence toward addressing his drug issue. Until
he can genuinely embrace the need to change and commit to a
different way of living, he will not be in a position to improve
his own functioning as a productive citizen, supportive partner,
or a protective, responsible parent to his [Children]." It was
recommended that Father begin substance abuse treatment, random
drug screens, a support group for substance users, parent
education after achieving sobriety, and couples counseling with
Mother.
Mother's August 15, 2019 Clinical Psychological
Evaluation stated that Mother believed that the removal of the
Children was unwarranted and parents' drug use away from the
Children was less of a concern than if it was done in the home.
Mother admitted to cannabis and methamphetamine use and had not
yet taken the first step toward recovery. Mother's "treatment
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prognosis is guarded due to her ambivalence toward addressing her
drug issue. Until she can genuinely embrace the need to change
and commit to a different way of living, she will not be in a
position to improve her functioning as a productive citizen,
supportive partner, or a protective, responsible parent to her
children." It was recommended that Mother engage in substance
abuse assessment and treatment recommendations, random drug
screens, a support group for substance users, parent education
after achieving sobriety, and couples counseling with Father.
On September 23, 2019, it was reported that Mother and
Father did now show up to drug tests on August 6, 15, 19, and 27,
2019.
On October 7, 2019, it was reported that Mother and
Father did not show up to drug tests on September 3, 10, and 19,
2019, and that both parents tested positive for methamphetamine
and amphetamine on September 24, 2019.
On October 8, 2019, the Family Court entered an order
noting that Mother and Father failed to appear for an October 3,
2019 status hearing, although their attorneys were present, and
Mother and Father were defaulted for their non-appearance.
On November 7, 2019, it was reported that Father did
not show up for drug tests on October 1, 10, 15, 21, and 29,
2019. Mother did not show up for drug tests on October 1, 10,
21, and 29, 2019, and tested positive for methamphetamine and
amphetamine on October 15, 2019.
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On November 27, 2019, at the conclusion of a Periodic
Review Hearing, the Family Court entered an Order Continuing
Foster Custody [HRS 587A], which ordered parents to follow a
service plan, dated November 21, 2019 (November 2019 Service
Plan). The November 2019 Service Plan required parents to
participate in the same services as the April 2019 Service Plan.
On December 2, 2019, it was reported that Mother and
Father did not show up for drug tests on November 4, 12, and 26,
2019, and on November 21, 2019, both parents admitted to using
meth[amphetamine], instead of taking a drug test. On January 6,
2020, it was reported that Mother and Father did not show up for
drug tests on December 2, 10, and 19, 2019, and both parents
tested positive for methamphetamine and amphetamine on December
24, 2019. On February 4, 2020, it was reported that Mother and
Father did not show up for drug tests on January 2, 14, 21, and
30, 2020, and both parents tested positive for methamphetamine
and amphetamine on January 6, 2020.
A Status Hearing was held on February 13, 2020. Mother
and Father failed to appear. On February 19, 2020, the Family
Court entered an order noting the parents' failure to appear at
the February 13, 2020 hearing and were defaulted for their non-
appearance. The order stated that neither Mother nor Father had
made progress toward resolving the problems that necessitated
placement. The parties were ordered to appear at an Order to
Show Cause Hearing and Periodic Review Hearing on May 14, 2020.
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On March 16, 2020, it was reported that Mother and
Father did not show up for drug tests on February 6, 13, 18, and
24, 2020. On April 7, 2020, it was reported that Mother and
Father did not show up for drug tests on March 2, 10, 16, and 24,
2020.
Mother and Father both failed to appear at the May 14,
2020 hearing. On May 26, 2020, the Family Court entered an Order
Continuing Foster Custody and Setting the Matter for a
Termination of Parental Rights Hearing [HRS 587A], which noted
the parents' failure to appear at the May 14, 2020 hearing and
scheduled a Termination of Parental Rights Hearing for July 23,
2020. The Family Court again found that Mother and Father had
made no progress toward resolving the problems that necessitated
placement, and Mother and Father were ordered to follow a service
plan, dated May 14, 2020 (May 2020 Service Plan), which continued
prior services.
On June 24, 2020, DHS filed an Ex Parte [sic] Motion
and Order for a Termination of Parental Rights Hearing (Motion to
Terminate Parental Rights), which was served on counsel for
parents.
On July 9, 2020, it was reported that Mother and Father
did not show up for drug tests on June 1, 9, 18, and 30, 2020.
On July 23, 2020, the Family Court held a hearing on
the Motion to Terminate Parental Rights. Mother entered the
courtroom after the hearing began, but was present. Father did
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not appear and the court informed his attorney that Father was
defaulted for that hearing, and that Father's attorney would be
released from the hearing, but the hearing would proceed with
Mother. Father's attorney then requested an opportunity, while
the hearing was recessed for the court to address a different
case, to be able to talk to Mother. The court said that if
Father showed up, he could be a part of the hearing, but that the
court was going to proceed after the recess.
After the recess, Father still was not present and his
attorney asked for a continuance based on counsel's understanding
that both parents were working with a pastor on Kaua#i and would
be going to a "Teen Challenge" program, but counsel was unable to
reach anyone who could confirm that information to DHS. Father's
counsel asked for a continuance to try to look into matters
before Father's parental rights were terminated forever. The
court noted that the Children had been in foster care for over a
year, that Father had been twice previously defaulted for failure
to appear. The Family Court again stated that Father would be
defaulted and the court then discharged Father's attorney. The
court then indicated that the July 23, 2020 hearing would proceed
as to Mother.
Brandi Yamamoto (Yamamoto) testified she is a DHS
social worker; she first became involved in the case in March
2019, when there was a report of threat of abuse and neglect by
Mother and Father. When she first went to the family home to
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investigate, she was denied entry to the home. She requested
that Mother and Father take urinalyses, but both parents
repeatedly missed them, even after she explained it might avoid
filing a petition for foster custody if they entered into a
safety plan. It was recommended that Mother and Father address
substance abuse prior to parenting classes, so parenting classes
were put on hold. She referred both parents to Women in Need
(sometimes referred to as WIN), which would do a substance abuse
assessment and random urinalyses every week. A substance abuse
assessment was performed for Father but he did not initiate
treatment. Father did not enter into any of the recommended
treatments stemming from the Women in Need assessments. Mother
was also referred to Women in Need for a substance abuse
assessment and urinalyses. Mother completed a substance abuse
assessment, but did not follow any of the recommendations.
Yamamoto had a chance encounter with parents in June
2020, and they informed her they would participate in drug
treatment through Teen Challenge on the Big Island (Mother) and
on Maui (Father), but they could not provide her with any
documentation for the services. Yamamoto testified that the
parents were not successful in housing themselves, which is an
issue to consider in the Children's safe placement. Yamamoto
stated that Father participated in #Ohana time (visitation
between parents and children), but he was not always engaged or
consistent in participation. Mother was very engaged in face-to-
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face visits, but there were some challenges in her not attending
visits. Visits were eventually put on hold due to
nonconfirmation. It was reported by the resource caregiver that
during some phone visits, the parents would say that they need to
charge their phone and would call back later, but then did not
call back and left the Children waiting for a phone call.
Yamamoto stated that it was important to return a call to the
Children, because it shows dedication to the Children and it
creates an emotional issue when the Children are eager to speak
with parents but are disappointed by not receiving a call and may
feel unwanted.
Yamamoto was concerned about Mother stating that she
intended to enter drug treatment without providing Yamamoto with
documentation because Mother had previously expressed her intent
to enter treatment, but failed to follow through. It was
Yamamoto's opinion that providing parents additional time would
negatively affect the Children because they had been in foster
care for over a year and had stability since entering foster
care. It was also Yamamoto's opinion that it was not reasonable
for the Children to wait for Mother to complete drug treatment
because they had been in foster care for over a year and they
deserve a safe and stable placement. She said that as children
get older, they tend to bond with the people they live with and
breaking that bond would be detrimental to their mental health
and well-being. JM was ten years old, ZM was five years old, and
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it was DHS's position that the court should terminate Mother and
Father's parental rights.
On cross-examination, DHS objected, based on lack of
relevance, when Yamamoto was asked if she was familiar with other
cases at DHS where parents went into treatment after 13 months of
noncompliance with a treatment recommendation. Mother's counsel
stated:
Yeah, the relevance is that the Department has taken
the position in the past that people who have taken as long
as two years to get into treatment have -- and done fewer
services than my client has done -- have been appropriate
for continued services. That's -- I'm personally familiar
with similar recommendations from DHS in the past, so that's
why I'm asking.
The Family Court sustained the objection. The hearing
was continued before Yamamoto's testimony was complete. The
Termination of Parental Rights hearing was set to continue on
September 11, 2020.
Neither Mother nor Father appeared at the September 11,
2020 continued hearing. In addition, Yamamoto was out on medical
leave. The Family Court further continued the hearing to October
8, 2020.
On October 8, 2020, a continued Termination of Parental
Rights hearing was held. Neither Mother nor Father were present
at the onset of the hearing (1:02 p.m., according to the court's
minutes; three calls were then made outside the courtroom at 1:04
p.m.) and the court defaulted them for their non-appearance and
excused Mother's attorney (1:06 p.m.). The Family Court then
accepted DHS's offer of proof that Yamamoto would testify that
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Mother and Father had not made progress in the reunification
plan, were not presently willing and able to provide a safe
family home for the children and parents would not become able
within a reasonable amount of time, even if given further time to
do services, to become willing and able to provide a safe family
home. The Family Court then found that the State presented clear
and convincing evidence that the parents are not able to provide
a safe family home. Approximately two minutes after Mother and
Father were defaulted (1:08 p.m.), Mother's attorney re-entered
the courtroom with both Mother and Father.
The Family Court addressed Mother and Father and
explained that they were defaulted for their nonappearance. The
court addressed Father and informed him that, because he was
previously defaulted and his attorney was released, he would have
to file a motion to set aside the default. The court indicated
that it would allow Father to listen to the evidence, but would
not allow him to present evidence or cross-examine. The court
addressed Mother and noted that she had not appeared at the last
hearing, but since the State was not ready to proceed, the matter
was continued. The court set aside the default for Mother's
nonappearance at the onset of the hearing.
As Father's attorney had been previously discharged by
the court, Father was without counsel. The court informed Father
that due to his absence at several proceedings, his attorney was
released, and he should have contacted his attorney before
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showing up so maybe the attorney could have worked to set aside
the default and Father could participate. The court added that,
"unless you find good cause -- file your motion and the Court
finds good cause, [the] Court will not set aside the default."
Father then left the courtroom.
Mother's attorney was then permitted to cross-examine
Yamamoto. Yamamoto testified she received a Teen Challenge
residential program acceptance letter for Mother, dated August 8,
2020, and received by DHS on September 28, 2020. Yamamoto had
made no effort to contact Teen Challenge about the letter and
conducted no investigation into the program. The Guardian Ad
Litem for the Children asked Yamamoto whether, since the August
letter, Mother had come in to Yamamoto's office or called
Yamamoto or updated Yamamoto concerning going to drug treatment
or the Teen Challenge program. Yamamoto said no, she had not
been provided any information since the case began that Mother
had entered any type of substance abuse treatment. In response
to a further question, Yamamoto stated that the Teen Challenge
letter was unsigned.
Mother then testified. When asked what steps she had
taken over the past year to secure treatment for drug abuse,
Mother stated that she had been trying to get into Teen
Challenge. She was also now trying to get into the WIN House,
while waiting to get into Teen Challenge which should be
available in a couple of weeks. She first contacted WIN House in
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September 2020. She first contacted Teen Challenge five months
before the October 8, 2020 hearing. She was waiting for her
original birth certificate, so she could get a state ID (hers was
expired), which she needed for the Teen Challenge program. The
Teen Challenge program is a one-year residential program.
On cross-examination, Mother testified that she had
started parenting classes, but she was not going because "it got
stopped." She had not done couples therapy. Mother acknowledged
that the Children had been in foster care for over a year and
that she did not know if Teen Challenge would allow her children
to live with her. If not, she would try to find a residential
treatment that accepts children. Mother also stated Father would
be going to Teen Challenge the next week. Mother admitted that,
while she was waiting for Teen Challenge, she could have been
attending services through WIN House but did not. She also
admitted to not doing random urinalyses. Mother stated that she
had participated in E Ala Hou three times, but only went three
out of six weeks since she started because of transportation
issues. Mother explained that the E Ala Hou meetings are
Christian-based meetings with people who are in remission or who
are drug addicts and they talk about how Christ can help you get
through your drug problems.
After Mother's testimony, the Family Court set
deadlines for written closing arguments: October 23, 2020, for
DHS; October 28, 2020, for Mother; and November 4, 2020, for a
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DHS rebuttal. A periodic review hearing was set for November 5,
2020.
On October 21, 2020, Mother filed Mother's Motion to
Reopen Trial (Motion to Reopen), pursuant to Rule 10 of the
Hawai#i Family Court Rules (HFCR) and the court's inherent power.
Mother requested to reopen the hearing to present additional
evidence that Mother recently secured a place to live at WIN
House, was actively engaged in treatment, and was drug free for
10 days as of October 20, 2020. In addition, Father had gone to
a facility on the Big Island for treatment.
According to court minutes, a hearing was held on
November 5, 2020. The minutes reflect an additional exhibit that
would be received concerning Mother's leaving WIN House without a
clinical discharge; Mother's counsel noted that Mother was still
participating in nonresidential services. Prior to the hearing,
on November 5, 2020, shortly after an order was entered
reappointing Father's counsel, Father filed a motion to set aside
his default (Motion to Set Aside). According to the hearing
minutes, DHS noted that it was in agreement to allow Mother to
present further evidence and that DHS would stipulate to set
aside the default against Father. The court noted it had not
seen Father's motion2 and therefore would not entertain a
stipulation at that time. The court denied the Motion to Reopen
2/
Father's Motion to Set Aside was scheduled for hearing on December
10, 2020.
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Trial due to a lack of new evidence or additional evidence to
support re-opening. No transcript of the November 5, 2020
hearing is in the record on appeal.
On November 19, 2020, Mother filed a Motion to
Reconsider Order Denying Motion to Reopen (Mother's Motion for
Reconsideration), pursuant to HFCR Rule 59 and the court's
inherent power. Mother again urged the court to take additional
testimony, noting that there was nearly eight months left, if she
was allotted the "full two years" to provide a safe family home.
Mother filed a declaration stating that she had been actively
engaged in intensive outpatient treatment through WIN House since
mid-October. She represented that she had not used any drugs
since October 13, 2020, and that she had several drug tests since
then and "none of those tests showed any drugs in my system other
than the leftover amounts from my October 13, 2020 use."3 Mother
also represented that she had taken several steps to secure her
own housing and located at least one place where she believed she
might be able to reside in the near future. On the same day, the
Family Court entered a written order denying the Motion to
Reopen.
On December 3, 2020, Father filed a Motion for
Reconsideration, Amendment and/or Relief from Order Terminating
3/
We note that Mother's November 18, 2020 attestation that she used
drugs on October 13, 2020, appears to be inconsistent with Mother's October
20, 2020 call to her attorney where she told him she had been drug free for
ten days, as reflected in counsel's declaration in conjunction with the Motion
to Reopen.
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Parental Rights (Father's Motion for Reconsideration), pursuant
to HFCR Rules 7, 52, 59, and 60 and moved the Family Court "to
reconsider, amend and/or provide relief from its Order issued
November 5, 2020, terminating Father's parental rights." Father
also filed a memorandum in support of his Motion to Set Aside.
Father argued that there was good cause to set aside his default
and to reconsider the termination of Father's parental rights by
default in light of the significant interest at stake and no
prejudice to DHS. Father contended that there was excusable
neglect because his substance abuse addiction constituted an
illness that prevented him from being able to effectively and
meaningfully participate in the case. Father also claimed the
default was equivalent to a sanction, the entry of default is
disfavored given the fundamental liberty interest at stake, and
the State would not be prejudiced by reopening the matter.
Father also stated that he had meritorious defenses that
warranted setting aside the default, specifically, that he was
currently clean and sober and participating in substance abuse
assessments with the McKenna Recovery Center, and that he and
Mother were staying with family, saving money, and preparing to
rent a house appropriate for the Children. Father argued that
the pandemic had made it difficult to find a recovery program
that was accepting applicants and that he enjoyed and would have
continued to engage in parenting classes but for DHS's
cancellation of the classes.
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On December 7, 2020, the Family Court issued the Order
Terminating Parental Rights. The Family Court found that Mother
and Father were not presently willing and able to provide a safe
family home, even with the assistance of a service plan, it was
not reasonably foreseeable that Mother and Father would become
willing and able to provide a safe family home within a
reasonable period of time, the proposed permanent plan of
adoption was in the best interest of the children, the children
entered foster custody on June 13, 2019, and the parents had
failed to resolve their substance abuse issues.
On December 8, 2020, Mother filed a Notice of Appeal
from the December 7, 2020 Order Terminating Parental Rights.
On December 10 and 16, 2020, the Family Court held
hearings on Mother's Motion for Reconsideration, the Motion to
Set Aside, and Father's Motion for Reconsideration. With respect
to the Motion to Set Aside, Father's counsel rested on the
submitted declaration. The Family Court recounted the procedural
history of the case, noting that when trial started on July 23,
2020, Father's counsel stated he was not able to reach Father,
Father did not appear, three calls were made outside the
courtroom, Father was defaulted, and counsel was released. The
court stated that although the State was not ready to proceed on
September 11, 2020, due to the witness's medical leave, neither
parent appeared at the September 11, 2020 hearing for continued
trial. On October 8, 2020, parents failed to appear (on time).
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Mother eventually appeared with her counsel, so trial was held.
The Family Court recalled that Father had been defaulted, he did
not have counsel, but requested an attorney to be present, but it
was not in the best interest of the Children to continue trial.
The court noted that it told Father he could sit in, but not
participate, because he was defaulted. The court stated that
Father never filed a motion to set aside the default.4 The court
pointed out that Father left the hearing after being told he
could not participate. The Family Court found that Father did
not show good cause because there was no explanation for failing
to appear on July 23, 2020, when trial started, and it prejudiced
the State and the Children to continue the matter any further.
The Family Court reiterated that, at the time of the October 8,
2020 hearing, the Children had been in foster care for almost
sixteen months, and it was not in the best interest of the
Children to continue the matter any further.
Mother's counsel also rested on Mother's Motion for
Reconsideration, except to note that Mother was still doing well
and she was still engaging in services and testing. After DHS
offered to enter Exhibit 85 through 89, Mother's counsel stated,
"So in light of his offer, I wouldn't object to those being
introduced and I don't think that there would be a need to
4/
We note that this is not exactly correct, although Father had not
filed a motion to set aside a default prior to the October 8, 2020 hearing.
We further note that the court discharged Father's attorney at the July 23,
2020 hearing, and Father was without counsel until his previously-appointed
attorney was reappointed on November 5, 2020.
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present an evidentiary case in light of that." Exhibits 85
through 89 were admitted into evidence. Mother's offer of proof
as to her testimony was that she was likely to secure stable
housing in Kalâheo by the next week, Mother was attending
substance abuse classes, and she was looking for employment.
Mother was sworn in and her offer of proof was accepted. Mother
argued, inter alia, that due to the unusual circumstances of the
COVID pandemic, which made getting mandatory documents and
employment difficult, and the fact that two years had not
elapsed, Mother's progress after trial should be considered and
the case should be reopened so she could present additional
testimony. DHS pointed to the complete lack of progress before
trial. The Guardian Ad Litem pointed out that the parents were
not denied any visits they confirmed they would attend, but
failed to show up on time, failed to communicate, and failed to
confirm visits. The Family Court noted in paragraph 4 of
Mother's declaration she stated that several urinalyses did not
show any drug use other than leftover amounts from October 13,
2020, but that trial ended on October 8, 2020; so, Mother was
still using drugs at the time that trial was concluded. Although
Mother entered intensive outpatient treatment through WIN House
in mid-October, it was after trial. The Family Court denied
Mother's Motion for Reconsideration.
Although the Family Court had denied Father's Motion to
Set Aside, Father was allowed to argue Father's Motion for
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Reconsideration. DHS noted that it understood that the court's
practice was when a default was entered for nonappearance, it was
for a particular day, not "for the life of the case." DHS
posited that the court was making a distinction here because
Father failed to show up for trial days. Father's counsel made
an offer of proof that Father would testify he is clean and
sober, participating with McKenna Recovery Center in classes and
random drug tests, and he and Mother were attending parenting
classes with Child & Family Services. Father admitted he went to
the Big Island for treatment, but left before being clinically
discharged. As further proof, Father would also testify that
parents are waiting to move into a house in Kalâheo, Father
started a full-time job doing roofing work, and Father would be
able to provide a safe family home within two years of July 2019,
when the Children were removed. Father was sworn in and Father's
offer of proof was accepted. Father argued that he should have a
chance to present evidence because it is in the Children's best
interest, that there were mitigating factors due to the pandemic,
and it was not close to two years yet. The Family Court denied
Father's Motion for Reconsideration and noted parents made
progress after its ruling, instead of from the beginning, and
Father was provided due process in that he was given notice, an
attorney, notice was provided to the attorney, and the attorney
lost contact with Father. Father's Motion for Reconsideration
was denied.
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On December 21, 2020, the Family Court entered an Order
Continuing Permanent Custody [HRS 587A] which, inter alia, denied
Mother's Motion for Reconsideration, Father's Motion to Set Aside
Default, and Father's Motion for Reconsideration. On December
23, 2020, the Family Court issued its Findings of Facts Regarding
Trial on Termination of Parental Rights of [Father and Mother]
[HRS 587A].
On December 31, 2020, Father filed a Notice of Appeal
from the December 7, 2020 Order Terminating Parental Rights and
the December 21, 2020 Order Continuing Permanent Custody.5
II. POINTS OF ERROR
Mother raises four points of error on appeal,
contending that: (1) the Family Court erred by precluding cross-
examination of Yamamoto regarding her recommendations in other
cases; (2) Findings of Fact (FOFs) V and Z are clearly erroneous;
(3) the Family Court clearly erred by finding that there was
clear and convincing evidence that it was not reasonably
foreseeable Mother would become willing and able to provide the
Children with a safe family home within a reasonable period of
time and Mother had not made progress towards resolving the
problems that necessitated placement of the Children; and (4) the
Family Court abused its discretion by refusing to reopen the
5/
Father's Notice of Appeal was docketed as a cross appeal since it
was filed in CAAP-XX-XXXXXXX after Mother filed a Notice of Appeal.
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hearing on the Motion to Terminate Parental Rights to allow
Mother to provide additional evidence of her progress.
Father raises four points of error on appeal,
contending that: (1) the Family Court abused its discretion by
denying Father the right to meaningfully participate with counsel
in the hearing on the Motion to Terminate Parental Rights, and
thereafter terminating his parental rights by default; (2) the
Family Court abused its discretion by refusing to reconsider
termination of Father's parental rights by default; (3) there was
no clear and convincing evidence that Father was not presently
willing and able to provide a safe family home, and it was not
reasonably foreseeable that Father would become willing and able
to provide a safe family home with the assistance of a service
plan within a reasonable period of time; and (4) FOFs V and Z are
clearly erroneous.6
III. APPLICABLE STANDARDS OF REVIEW
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
6/
In his Reply Brief, Father more specifically argues that he should
have been appointed counsel at the continued hearing on October 8, 2020, after
his counsel was previously discharged due to his default and non-appearance,
but instead counsel was only reappointed after his parental rights were
terminated.
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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]
(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 and internal
quotation marks 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
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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.
On the other hand, the family court's COLs are
reviewed on appeal de novo, under the right/wrong
standard. COLs, consequently, are not binding upon an
appellate court and are freely reviewable for their
correctness.
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).
"We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard." State v.
Ui, 142 Hawai#i 287, 292, 418 P.3d 628, 633 (2018) (citation
omitted).
IV. DISCUSSION
A. Mother
1. Cross-examination of Yamamoto
On appeal, Mother argues that the Family Court abused
its discretion when it did not permit her to conduct "searching
cross-examination" of an expert witness, Yamamoto, about whether
her recommendations were different in other, similar cases.
Mother contends that, because she was not allowed such cross-
examination, she was improperly prevented from adducing evidence
about the reliability and trustworthiness of the State's expert.
In addition, Mother submits that she was precluded from
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performing a "broad cross-examination of an expert" as permitted
by Rule 702.1 of the Hawai#i Rules of Evidence (HRE).7
However, at the evidentiary hearing below, Mother's
response to DHS's relevance objection was:
Yeah, the relevance is that the Department has taken
the position in the past that people who have taken as long
as two years to get into treatment have -- and done fewer
services than my client has done -- have been appropriate
for continued services. That's -- I'm personally familiar
with similar recommendations from DHS in the past, so that's
why I'm asking.
Mother did not argue in the Family Court that the
purpose of the questioning was to challenge the reliability and
trustworthiness of Yamamoto's testimony. Therefore, Mother's
claim that HRE Rule 702.1 was violated is waived.8
7/
HRE Rule 702.1 states:
Rule 702.1 Cross-examination of experts.
(a) General. A witness testifying as an expert may be
cross-examined to the same extent as any other witness and,
in addition, may be cross-examined as to (1) the witness'
qualifications, (2) the subject to which the witness' expert
testimony relates, and (3) the matter upon which the
witness' opinion is based and the reasons for the witness'
opinion.
(b) Texts and treatises. If a witness testifying as an
expert testifies in the form of an opinion, the witness may
be cross-examined in regard to the content or tenor of any
scientific, technical, or professional text, treatise,
journal, or similar publication only if:
(1) The witness referred to, considered, or relied
upon such publication in arriving at or forming the
witness' opinion, or
(2) Such publication qualifies for admission into
evidence under rule 803(b)(18).
8/
We note that Mother sought to introduce evidence that parents in
other termination of parental rights cases were given at least two years to
participate in services before DHS moved to terminate their parental rights
because HRS § 587A-33 requires, inter alia, clear and convincing evidence that
it is not reasonably foreseeable a parent "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
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2. FOFs V and Z
Mother challenges FOFs V and Z, which state:
V Mother and Father continue to be inconsistent
with participating in drug testing and failed to
appear for drug testing on November 23, 2020, a
failure to appear is considered a positive test
by the Court;
. . . .
Z Mother and Father have failed to engage in
couples counseling, therapy or participate in a
sober support group[.]
Mother argues that FOF V is clearly erroneous because
Mother "missed a drug test on November 23, 2020 because the DHS
stopped affording Mother drug testing due to termination of her
parental rights." However, DHS submitted to the Family Court the
WIN-certified reports that Mother tested negative on November 2,
12, and 30, 2020, but did not show up for testing on November 23,
2020. The reports indicate Mother's tests on November 23 and 30,
2020, as well as the tests earlier in November, were court
ordered. Thus, substance abuse testing was not terminated in
November 2020. Mother's counsel was mistaken, to the extent he
claimed that, when the order terminating Mother's parental rights
was orally announced, parents "were cut off from substance abuse
testing." The Order Terminating Parental Rights was not issued
years from the child's date of entry into foster care[.]" However, as Mother
recognizes, "the two-year time limit imposed by Chapter 587A does not require
that the full two years be allowed in every case[.]" HRS § 587A-7 (2018)
specifies the safe family home factors to consider "when determining whether a
child's family is willing and able to provide the child with a safe family
home," none of which involve comparing other parents or cases. These factors
are specific to the particular child, family, and other circumstances at issue
in the particular case before the court. Thus, Mother's inquiry into other
cases was not relevant and the objection to relevance was properly sustained.
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until December 7, 2020. Therefore, FOF V is not clearly
erroneous as to Mother.
Mother argues that FOF Z is clearly erroneous because
Mother testified she engaged in a sober support group, E Ala Hou.
Mother testified:
Q. Okay. So now, [Mother] while you've
been waiting to get into -- to fly over to treatment
on the Big Island at Teen Challenge, you could have
been attending services through the WIN House?
A. Uh-huh.
Q. But you're not?
A. No.
Q. You're not doing the random urinalysis? You're
not --
A. I haven't.
Q. -- doing groups?
A. I've been doing the, yeah, the whole one, but
that's only on Mondays.
Q. Okay. But you haven't participated in anything --
A. No.
Q. -- else?
A. No. But the -- the ladies at WIN House said that
when I get in there, they can help me get into the
intensive care groups or meetings they have three
times a week.
Q. But you haven't entered into any of the other
programs at WIN?
A. No.
Q. Okay. And the E Ala Hou program, that's through
Child & Family Services?
A. No.
Q. No. E Ala Hou is --
A. I got in that through the church that we were
going for Teen Challenge to.
Q. Through Pastor Kua?
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A. Yes.
Q. And how long have you been attending those
services?
A. I went three times so far.
Q. Three times. And it's once a week?
A. Yeah.
Q. So you've gone for the last three weeks?
A. I didn't go the -- the week before this one or
this one. I'm going to go this week, this next coming
week.
Q. So you haven't been going every week, but you went
--
A. Yeah.
Q. -- three times? Is that right?
A. Yeah.
Q. Okay. So you --
A. Because it's all the way in Kekaha, so if I get --
have a ride or the church -- if I call the church and
ask them for a ride, they'll give me a ride from --
Q. So when did you start going? When was the first E
Ala Hou session you went to?
A. I went -- like the first time was like four --
five or six weeks ago I started.
Q. Okay. So in August?
A. Yeah. At the end of August.
Q. Okay. So between the end of August and today,
you've gone three times?
A. Yeah.
Q. But it meets weekly?
A. Yeah.
Q. Is that right?
A. Yeah.
Q. Okay. So you've gone to less than half of the
times that you're supposed to have gone, right?
A. I went -- like three out of six weeks I went since
I started.
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Q. Okay. But the end of August. There's all of
September, right? And then this is the first week of
October. Okay. So six weeks.
A. Uh-huh.
Q. You're saying three out of six?
A. Uh-huh.
Mother further testified "they're meetings with people
who are in remission or who are drug addicts, and they talk about
Christ and drug problems and how Christ can help you get through
it."
While it appears that the Family Court could have been
more precise by acknowledging Mother's limited and inconsistent
participation in the E Ala Hou program, viewing the entirety of
the record of Mother's lack of actual engagement, we cannot
conclude that the Family Court clearly erred in its findings as
to Mother in FOF Z.
3. The termination of Mother's parental rights
Mother argues that the Family Court clearly erred by
finding that there was clear and convincing evidence that it was
not reasonably foreseeable that Mother would become willing and
able to provide the Children with a safe family home within a
reasonable period of time, and Mother had not made progress
towards resolving the problems that necessitated placement of the
Children. Mother submits that it was premature to determine she
had not made progress because, when the Family Court announced
its ruling, she still had nine months until the two-year period
ended at the time her parental rights were terminated.
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As the Background of this case recounts, Mother's
substance abuse, and the resulting harm, imminent harm, or
threatened harm to the Children was first reported to DHS in
August of 2018. The Children entered foster care on June 13,
2019, after numerous failed and missed drug tests and parents'
failure to meaningfully engage with DHS.
Unchallenged findings include that "Mother and Father
consistently failed to appear for testing, tested positive for
amphetamines/methamphetamines or admitted to using
amphetamines/methamphetamines, in the 18 months since the
petition was filed on April 16, 2019," (FOF S) and "Mother and
Father despite, multiple substance abuse evaluations and
opportunities to participate in substance abuse treatment, have
failed to complete treatment, and have never consistently
maintained sobriety," (FOF X). It was not until October 8, 2020,
that Mother testified that she decided to participate in Teen
Challenge on the Big Island for drug treatment. There had been
certain hurdles for Mother's entry into that particular program,
but Mother provided no good reason for not having engaged in
other available substance abuse services prior to that time.
Notably, at the time of Mother's October 8, 2020 testimony, she
reported that the Teen Challenge was a year-long program, and she
had not yet started it. Thus, even if Mother had entered and
successfully completed that program, she would not have addressed
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her substance abuse issues until at least October 2021, well
beyond two years after the Children entered foster care.
On the record in this case, we cannot conclude that the
Family Court clearly erred in determining that it was not
reasonably foreseeable that Mother would 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 years from when the Children entered foster care on June 13,
2019. It was not reasonably foreseeable that providing Mother
until June 2021 to address her safety issues would have resulted
in Mother demonstrating that she would become willing and able to
provide a safe family home. Therefore, we reject Mother's
argument that she was not provided with a reasonable period of
time; it was not premature for the Family Court to determine that
Mother had not made progress in addressing her safety concerns,
even though it was nine months prior to the expiration of the
maximum two-year period which could be considered reasonable.
4. Motion to Reopen
On October 21, 2020, less than two weeks after the
completion of the evidentiary hearing, Mother requested that the
Family Court reopen trial to allow additional testimony
concerning her entry into residential treatment at WIN House and
Mother's representation to her attorney that she had been drug
free for ten days. It appears that, even prior to the November
5, 2020 hearing on Mother's Motion to Reopen, she had left WIN
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House without a clinical discharge. We cannot conclude that the
Family Court abused its discretion in denying this motion. See
State v. Christian, 88 Hawai#i 407, 417, 967 P.2d 239, 249 (1998)
(permitting or disallowing the reopening of a case is
discretionary).
On November 19, 2020, Mother's Motion for Reconsider-
ation was filed, again requesting that the Family Court reopen
trial and take additional testimony. Mother cited Doe v. Doe, 98
Hawai#i 144, 156, 44 P.3d 1085, 1097 (2002), which held that a
family court erred by denying a motion for new trial, as well as
In re TW, 124 Hawai#i 468, 474, 248 P.3d 234, 240 (App. 2011),
where this court noted that a short continuance would not have
resulted in any substantial prejudice or unduly infringed upon
the court's need to manage its docket. Essentially, Mother
argued that the Family Court abused its discretion in denying the
October 21, 2020 Motion to Reopen.
In Doe, the supreme court held that the family court
abused its discretion by denying a HFCR Rule 59(a) motion for new
trial by misapplying the good cause standard applicable to HFCR
Rule 59(a) motions and refusing to extend testimony beyond a
three-hour time limit to allow other witnesses to testify. Doe,
98 Hawai#i at 155-56, 44 P.3d at 1096-97. Doe is distinguishable
from this case because the Motion to Reopen was not an HFCR Rule
59(a) motion for new trial, Mother was not limited by the Family
Court in presenting pertinent evidence, Mother sought to present
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her own additional testimony instead of testimony by other
witnesses who were prevented from previously testifying, and the
testimony she requested to present regarded events subsequent to
the closing of the hearing instead of evidence that existed at
the time of the hearing. Indeed, the testimony Mother sought to
present was that she had begun a different treatment program than
the one she had told the court she was going to start, only 13
days earlier, and Mother had again changed programs prior to the
hearing on the Motion to Reopen.
In In re TW, a family court defaulted a parent for
failure to appear at one hearing, granted a motion for permanent
custody based on the default, and denied the parent's motion to
set aside the default. 124 Hawai#i at 469, 248 P.2d at 235.
This court held that the Family Court abused its discretion by
imposing a default sanction for a single non-appearance and there
was nothing in the record to suggest a short continuance to
permit counsel to determine the parent's whereabouts and secure
her attendance would have resulted in any substantial prejudice
to DHS or the children. Id. at 474, 248 P.2d at 240. In this
case, Mother was not sanctioned for failure to appear. Although
Mother was initially defaulted on October 8, 2020, for failing to
appear for further hearing on the Motion to Terminate Parental
Rights, her default was set aside when she appeared a few minutes
later. Therefore, In re TW is inapplicable.
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Here, Mother requested that the Family Court reconsider
its rejection of her October 21, 2020 request to reopen the case
to present Mother's further testimony about her post-trial,
initial steps, into substance abuse treatment and (short-term)
sobriety. While DHS and the Family Court encouraged Mother to
continue to address her substance abuse problems at the hearing
on Mother's Motion for Reconsideration, Mother's offer of proof
was that she was likely to secure stable housing (not that she
had secured housing), she was attending substance abuse classes
(not that she had been successfully discharged from a substance
abuse program), and that she was looking for employment (not that
she was employed). Mother admitted having done drugs post-trial,
on October 13, 2020 (after previously reporting to her lawyer on
October 20, 2020, that she had not done drugs for ten days), and
as the Family Court noted, she failed to show up for drug testing
on November 23, 2020. Based on the record in this case, we
cannot conclude that the Family Court abused its discretion by
failing to reconsider the denial of the Motion to Reopen.
B. Father
1. The termination of Father's rights by default
Father argues, inter alia, that the Family Court abused
its discretion by denying Father the right to meaningfully
participate, with counsel, in the October 8, 2020 evidentiary
hearing and terminating his parental rights by default. Father's
further argument on appeal – that had he been permitted to
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participate at the October 8, 2020 hearing he would have shown
that it was his substance abuse that prevented him from showing
up and participating in the case earlier – is not compelling,
especially in light of the fact that the substance abuse was the
main reason that these parents were unable to provide the
Children with a safe family home. However, as argued more
thoroughly in his Reply Brief, Father's ability to even make that
argument, or any argument, was severely impacted by his lack of
legal representation.
Hawai#i appellate courts have repeatedly recognized
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. See, e.g., In re Doe, 99 Hawai#i at 533, 57 P.3d
at 458; In re T.M., 131 Hawai#i 419, 421, 319 P.3d 338, 340
(2014); In re L.I., 149 Hawai#i 118, 482 P.3d 1079 (2021); In re
TW, 124 Hawai#i 468, 248 P.3d 234 (App. 2011). The United States
Supreme Court has similarly recognized these rights as being
protected by the Fourteenth Amendment to the United States
Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000)
("[T]he interest of parents in the care, custody, and control of
their children—is perhaps the oldest of the fundamental liberty
interests recognized by this Court.").
In In re T.M., the Hawai#i Supreme Court held that
"parents have a constitutional right to counsel under article I,
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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." 131 Hawai#i at 421, 319 P.3d at
340. The court explained that if the mother in that case had
been appointed an attorney sooner, she might have been able to
comply with the terms of the family plan and provide her family
with a safe home, possibly avoiding the termination of her
parental rights. Id. at 432-33, 319 P.3d at 351-52.
In In re L.I., the Hawai#i Supreme Court held that
family courts must appoint counsel for indigent parents even
earlier (where applicable), when DHS files a petition for family
supervision, because their parental rights are already
substantially affected at that point. 149 Hawai#i at 122, 482
P.3d at 1083 (citation omitted). The court further held that the
failure to do so was structural error, requiring vacatur without
the necessity of proving harmful error. Id. at 122-23, 484 P.3d
at 1083-84. Citing In re T.M., the court noted that "an attorney
is essential to protect an indigent parent's liberty interest in
the care, custody and control of his or her children." Id. at
122, 484 P.3d at 1083 (citation and internal quotation marks
omitted). The gravamen of this decision, as well as its
predecessors, is that such an attorney is essential throughout
proceedings that could result in the termination of parental
rights, and we so hold. Representation is so essential that
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failure to provide counsel to indigent parents facing possible
termination of their parental rights is structural error that
cannot be deemed harmless error. See id. at 122-23, 482 P.3d at
1083-84 (citation omitted).
In this case, there is no mystery in the Family Court's
dim view of Father's lack of progress in addressing his substance
abuse issues, lack of comprehension of the resulting harm to the
Children, which was exacerbated by inconsistent visitation and
communication with the Children, lack of participation at
multiple hearings, and failure to show up on time to the second
day of the evidentiary hearing to terminate his parental rights.
That said, it is not clear why at the July 23, 2020
hearing, when Father did not appear in the first instance, Father
was defaulted and Father's counsel was "released" for the
hearing, but after counsel asked for a continuance to confirm the
details of Father's treatment plan, the Family Court not only
reiterated that Father was defaulted, but also discharged
Father's attorney from the case, leaving Father unrepresented,
although the issue of the termination of his parental rights was
not yet decided. We note that Father had previously failed to
appear and Father was "defaulted," but apparently only for
proceedings before the court on that day. Nothing in the record
of the July 23, 2020 hearing indicated that the default against
Father was for the duration of the termination proceedings. That
only became clear on October 8, 2020, when the Family Court
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informed Father, who was unrepresented at that point, that he
could not participate further in the termination proceedings
unless he filed a motion to set aside his default and the court
found good cause.
We decline to speculate as to the various ways having
continuous representation might have benefitted Father, in and
outside the courtroom. We observe, however, when the Family
Court defaulted Father for nonappearance (being late) to the
October 8, 2020 hearing, Father did not have an attorney present
to possibly explain why he (and Mother) arrived six minutes after
the hearing started. Nor did Father have counsel present to
address the court when it announced that Father now would have to
file a motion to set aside the default, and the court would have
to find good cause, before Father could participate any further
in the proceedings to terminate his parental rights. If an
attorney had been present, he or she might have advised Father to
stay for the rest of the proceedings.9 It also appears that the
discharge of Father's attorney led or at least contributed to the
delay in Father's ability to file a motion to set aside default.
As noted above, Father's November 5, 2020 Motion to Set Aside was
filed less than two hours after the order reappointing his
attorney was entered, presumably because counsel was not
9/
When the Family Court heard Father's Motion to Set Aside and
Father's Motion for Reconsideration on December 16, 2020, the court pointed
to, inter alia, Father's departure from the October 8, 2020 hearing in its
explanation for the denial of Father's requests for relief.
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authorized to proceed on Father's behalf prior to the entry of
the new order of appointment. This led to entry of the December
7, 2020 Order Terminating Parental Rights before the hearing on
Father's Motion to Set Aside was heard on December 10 and 16,
2020.
We recognize, however, that these potential benefits
and consequences relate only to the issue of whether or not any
error in conducting termination proceedings against Father after
discharging his attorney substantially affected Father's rights,
i.e., were harmful.
However, based on the Hawai#i Supreme Court's decisions
concerning the due process afforded to parents facing possible
termination of their parental rights, particularly In re L.I., we
hold that the Family Court's discharge of Father's attorney
during the pendency of these proceedings, prior to the Family
Court's decision on DHS's Motion to Terminate Parental Rights,
violated Father's due process rights and was structural error.
Accordingly, with respect to Father, the Order Terminating
Parental Rights must be vacated without the necessity of proving
harmful error. See In re L.I., 149 Hawai#i at 122-23, 482 P.3d
at 1078-79. In addition, although we have rejected Mother's
contentions that the Family Court erred with respect to the
termination of her parental rights, we conclude that the Order
Terminating Parental Rights should be vacated in its entirety to
ensure that the Family Court can consider all factors that might
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
aid in determinating whether a particular permanent plan is in
the best interest of the Children.10
2. Father's Other Arguments
In light of our decision to vacate the Order
Terminating Parental Rights, we need not address Father's other
arguments on appeal.
V. CONCLUSION
For these reasons, the Family Court's December 7, 2020
Order Terminating Parental Rights is vacated, and this case is
remanded to the Family Court for further proceedings.
On the briefs:
/s/ Lisa M. Ginoza
Matthew Mannisto, Chief Judge
for Mother-Appellant.
/s/ Katherine G. Leonard
Gregory H. Meyers, Associate Judge
(Meyers & Meyers LLC),
for Father-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Russell K. Goo,
Julio C. Herrera,
Ian T. Tsuda,
Patrick A. Pascual,
Deputy Attorneys General,
Family Law Division, State of Hawai#i,
for Petitioner-Appellee-
Cross-Appellee THE DEPARTMENT OF
HUMAN SERVICES.
10/
In light of Mother and Father's prior arguments, we note that this
ruling does not constitute the beginning of a new "two-year period" to address
the issues that led to the removal of Children from the family home.
43