In re: NF and AF

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JUN-2023
07:53 AM
Dkt. 104 SO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
(Consolidated under CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
IN THE INTEREST OF NF and AF
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 17-00211)
and
CAAP-XX-XXXXXXX
IN THE INTEREST OF HG
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 20-00192)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
In these consolidated appeals Respondent-Appellant
Father appeals from the: (1) Order Terminating Parental Rights
over NF and AF (the Twins) entered by the Family Court of the
First Circuit on August 1, 2022, in FC-S No. 17-00211 (the First
Case), and; (2) Order Terminating Parental Rights over HF1
entered by the family court on August 1, 2022, in FC-S
1
When the Petition for Temporary Foster Custody was filed in FC-S
No. 20-00192, HF was identified as HG. The caption was amended when the
family court received the birth certificate. HF's birth certificate does not
identify a father.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
No. 20-00192 (the Second Case).2 Father is the natural and legal
father of the Twins,3 and the alleged natural father of HF
(collectively, Children).4 For the reasons explained below, we
affirm.
Mother gave birth to Children's biological sister, EF,
in 2016. On July 29, 2016, Petitioner-Appellee Department of
Human Services (DHS) received a report of threat of abuse and
threatened neglect of EF. DHS didn't immediately file a petition
for foster custody because Mother and Father (Parents) agreed to
participate in Intensive Home-Based Services (IHBS); live with
paternal grandmother; attend all medical appointments for
themselves and for EF; and maintain contact with an IHBS case
worker. Parents stopped participating in IHBS after two weeks
and left paternal grandmother's residence with EF. DHS then
confirmed a threat of abuse to and neglect of EF and filed a
petition for temporary foster custody upon location, which the
family court granted on August 31, 2016. EF died on September 1,
2016, before she could be located. An autopsy and investigation
were conducted, but the cause and manner of EF's death were
undetermined.
The Twins were born in 2017. DHS filed a petition for
temporary foster custody of the Twins soon after their birth.
The family court granted the petition. The Twins' date of entry
into foster care was November 28, 2017. Father appealed. We
affirmed. In re NF and AF, No. CAAP-XX-XXXXXXX, 2019 WL 6830828(Haw. App. Dec. 13, 2019) (SDO). The supreme court rejected
Father's application for writ of certiorari. In re NF and AF,
No. SCWC-XX-XXXXXXX, 2020 WL 1675713 (Haw. Apr. 6, 2020).
2
The Honorable Andrew T. Park presided over both cases.
3
See In re NF and AF, No. CAAP-XX-XXXXXXX, 2019 WL 6830828, at *1
(Haw. App. Dec. 13, 2019) (SDO), cert. rejected, No. SCWC-18-000948, 2020 WL
1675713 (Haw. Apr. 6, 2020).
4
Children's mother (Mother) has not appealed from the orders.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HF was born in 2020. DHS filed a petition for
temporary foster custody of HF soon after her birth. The family
court granted the petition. HF's date of entry into foster care
was January 8, 2021.
DHS then filed petitions to terminate Parents' parental
rights as to all the Children. The family court conducted a
hearing on April 28, May 23, and July 18, 2022. Mother did not
appear at the hearing. Father attended the April 28 and July 18,
2022 hearings and testified on his own behalf. The family court
entered orders terminating parental rights on August 1, 2022.
These appeals by Father followed.
Relevant to these appeals, Hawaii Revised Statutes
(HRS) § 587A-33 "provides that the family court shall terminate a
parent's parental rights if it finds [by clear and convincing
evidence] that: (1) the parent is not able to provide a safe
family home for the child now or within a reasonable period of
time; [and] (2) the proposed permanent plan is in the best
interests of the child[.]" In re R Child., 145 Hawai#i 477, 483,
454 P.3d 418, 424 (2019) (statutory citations omitted).
Generally, the family court possesses wide discretion in
making its decisions and those decision[s] will not be set
aside unless there is a manifest abuse of discretion. Thus,
we will not disturb the family court's decisions on appeal
unless the family court disregarded rules or principles of
law or practice to the substantial detriment of a party
litigant and its decision clearly exceeded the bounds of
reason.
Id. at 482, 454 P.3d at 423 (citation omitted).
Father's opening brief does not comply with Rule 11 of
the Rules Expediting Child Protective Appeals. However, we
attempt to decide cases on the merits, where possible. O'Connor
v. Diocese of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364
(1994). Accordingly, we address what we discern to be Father's
arguments on appeal.
Father challenges a number of the family court's
findings of fact, and argues that the family court erred by
considering the circumstances of EF's death. The label of a
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
finding of fact (FOF) or a conclusion of law (COL) does not
determine the standard of review. See Crosby v. State Dep't of
Budget & Fin., 76 Hawai#i 332, 340, 876 P.2d 1300, 1308 (1994).
The question whether a determination is an FOF or a COL is a
question of law. Thus, the accuracy of the label affixed by the
family court is freely reviewable by a reviewing court. Kilauea
Neighborhood Ass'n v. Land Use Comm'n, 7 Haw. App. 227, 229, 751
P.2d 1031, 1034 (1988) (citation omitted).
The 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.
In re JM, 150 Hawai#i 125, 137, 497 P.3d 140, 152 (App. 2021)
(cleaned up) (quoting In re Doe, 95 Hawai#i 183, 190, 20 P.3d
616, 623 (2001)).
In the First Case, Father challenges the following
determinations by the family court:
65. The facts of [EF]'s case are relevant to the DHS
assessment of harm in this case because the death of a
sibling due to abuse/neglect or under uncertain
circumstances is a safety factor that is considered by the
DHS in its assessment of whether harm or threatened harm is
still present in the current safety assessment.
66. The facts and circumstances of [EF]'s death are
relevant to the issues before the Court in this contested
TPR trial. In deciding whether the Child[ren] are subject
to harm or threatened harm by the acts or omissions of the
Parents, and whether the Parents can provide a safe home for
the Child[ren] even with the assistance of a service plan,
the Court notes that most, if not all, of the same safety
issues that were present when [EF] died were also present
during the current DHS management, and that these safety
issues remained unresolved.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
. . . .
77. The circumstances surrounding [EF]'s death are
evidence of the reasonably foreseeable substantial risk of
harm to the Children posed by the Parents in this case.
a. On the day of [EF]'s death, Father contacted
the Department of the Medical Examiner directly to report
that he had found his daughter unresponsive early that
morning in her bassinet in a van in which they had been
living. The Parents did not contact emergency services or
police and instead placed the baby in a car seat in a
different vehicle and drove around with the body for several
hours before reporting the death. [EF]'s body was received
approximately 18 hours after discovery and [EF] was
officially pronounced dead at 9:00 p.m. on September 1,
2016.
b. The Parents' behavior after [EF] was
discovered unresponsive is evidence of threatened harm to
the Children in this case: A reasonably safe and prudent
parent would have immediately called 9-1-1 upon discovering
their newborn child unresponsive. Neither Mother nor Father
called 9-1-1 at any point after the discovery. This
evidence is not limited to threatened harm; it also goes to
safety of the family home and the appropriateness of the
service plan.
c. After discovering that [EF] was
unresponsive, Father performed CPR and massaged [EF]'s
chest. Father felt that [EF]'s body "still had some heat at
2:30 a.m." but there was "no heat at 2:50 a.m." so he
assumed that she was dead.
d. Mother was aware of [EF]'s condition from
the time of discovery, and there is no evidence that she
attempted to contact emergency responders or that she
otherwise attempted to obtain immediate assistance.
e. Before presenting themselves at the medical
examiner's office, the Parents drove around with [EF]'s body
in the car and did "errands" which included withdrawing
money from an ATM; waiting at a car repair shop for 2.5
hours until the shop opened; going to Wal-Mart to obtain
phone cards; and going to Carl's Jr. for breakfast.
. . . .
86. Houselessness alone is not a safety concern, so a
physical, residential address is not required. Parents
could live in a tent anywhere, provided that the living
situation is assessed as safe. However, [EF] died while
parents were houseless, which heightens the need for the DHS
to assess the safety of parents' living arrangements.
. . . .
110. Father has been given the opportunity to engage
in the services recommended by the DHS in services [sic]
plans dated October 2, 2017, June 25, 2018, January 24,
2019, October 15, 2019, March 24, 2020, October 12, 2020,
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
December 14, 2020, October 1, 2021, and March 23, 2022. All
the service plans were fair, appropriate, and comprehensive,
and provide the steps necessary to facilitate the return of
the Children to the family home.
. . . .
125. Father is not willing and able to provide the
Children with a safe family home, even with the assistance
of a service plan, nor is it reasonably foreseeable that he
will become willing and able to provide a safe family home,
even with the assistance of a service plan in the reasonably
foreseeable future.
. . . .
127. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
reunify the Children with Father by identifying necessary,
appropriate, and reasonable services to address Father's
identified safety issues, and making the appropriate and
timely referrals for these services.
128. Under the circumstances presented by the instant
case, the DHS gave Father every opportunity to succeed in
remedying the problems which subjected the Children to
substantial risk of being harmed in the family home.
In the Second Case, Father challenges the following
determinations by the family court:
47. The facts of [EF]'s case are relevant to the DHS
assessment of harm in this case because the death of a
sibling due to abuse/neglect or under uncertain
circumstances is a safety factor that is considered by the
DHS in its assessment of whether harm or threatened harm is
still present in the current safety assessment.
48. The facts and circumstances of [EF]'s death are
relevant to the issues before the Court in this contested
TPR trial. In deciding whether the Child are [sic] subject
to harm or threatened harm by the acts or omissions of the
Parents, and whether the Parents can provide a safe home for
the Child even with the assistance of a service plan, the
Court notes that most, if not all, of the same safety issues
that were present when [EF] died were also present during
the current DHS case management, and that these safety
issues remained unresolved.
. . . .
62. The Parents' behavior after [EF] was discovered
unresponsive is evidence of threatened harm to the [Children
in this case]: A reasonably safe and prudent parent would
have immediately called 9-1-1 upon discovering their newborn
child unresponsive. Neither Mother nor Father called 9-1-1
at any point after the discovery.
. . . .
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
114. Father is not willing and able to provide the
Child with a safe family home, even with the assistance of a
service plan, nor is it reasonably foreseeable that he will
become willing and able to provide a safe family home, even
with the assistance of a service plan in the reasonably
foreseeable future.
. . . .
116. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
reunify the Child with Father by identifying necessary,
appropriate, and reasonable services to address Father's
identified safety issues, and making the appropriate and
timely referrals for these services.
117. Under the circumstances presented by the instant
case, the DHS gave Father every opportunity to succeed in
remedying the problems which subjected the Child to
substantial risk of being harmed in the family home.
The family court's combined findings and conclusions
were supported by substantial evidence in the record and
reflected a correct application of the law. See HRS § 587A-
7(a)(4)(D);5 In re Doe, 95 Hawai#i at 191, 20 P.3d at 624 ("the
family court may 'look to the past and present conditions of the
home and natural parents so as to gain insights into the quality
of care the child may reasonably be expected to receive in the
future'") (quoting Woodruff v. Keale, 64 Haw. 85, 99, 637 P.2d
760, 769 (1981)). A number of unchallenged findings in the First
Case and the Second Case also detail the circumstances
surrounding EF's death.6 The family court did not abuse its
5
HRS § 587A-7 (2018) provides, in relevant part:
(a) The following factors shall be fully considered when
determining whether a child's family is willing and able to
provide the child with a safe family home:
. . . .
(4) Facts regarding the alleged perpetrators of harm
to the child, . . . which facts shall include:
. . . .
(D) Prior involvement in services[.]
6
See FOF nos. 49-64 in the First Case and FOF nos. 31-46 in the
Second Case.
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
discretion by determining that the circumstances of EF's death
were relevant to DHS's assessment of harm and the contested
issues in the termination of Father's parental rights for
Children.
Father argues that the family court erred by finding he
was not able to provide a safe family home for Children. The
family court's determination was supported by FOF no. 125 and
unchallenged FOF nos. 89-91 and 97-106 in the First Case, and by
FOF no. 114 and unchallenged FOF nos. 69-95 in the Second Case,
which detail Father's lack of housing and inability to supervise
the Children. The family court's determination that Father was
not able to provide a safe family home for Children was not
clearly erroneous.
Father argues that DHS failed to provide him with a
reasonable opportunity to reunify with the Children. He fails to
cite where in the record the error allegedly occurred, or how it
was preserved for appeal. However, we note that FOF nos. 127-28
and unchallenged FOF nos. 88-89 in the First Case, and FOF
nos. 116-17 and unchallenged FOF nos. 74-75 in the Second Case,
detail the frequency of Parents' visits with Children and the
number and kinds of service plans offered to Father by DHS.7
Father does not contest FOF no. 110 in the First Case, or FOF
no. 99 in the Second Case, which determined that the service
plans offered by DHS were fair, appropriate, and comprehensive,
and provided steps that would be necessary to return the Children
to the family home.
Father argues that the family court erred by finding
that his mental health history subjected the Twins to threatened
harm. However, Father does not contest FOF no. 76 in the First
Case and FOF no. 59 in the Second Case, which found that Children
were subject to threatened harm based upon Parents' histories of
mental health problems. Those unchallenged findings are binding
7
Services offered to Father included psychological evaluation and
mental health assessment, psychiatric treatment and recommendation, therapy,
parenting classes and education, and home-based outreach services.
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
on appeal. In re Doe, 99 Hawai#i at 538, 57 P.3d at 463. Father
also argues that the family court erred by finding that Parents'
act of leaving the Twins in the hospital threatened harm to the
twins. Father cites to no such finding, and we find none.
Father's argument lacks merit.
For the foregoing reasons, we affirm the "Order
Terminating Parental Rights" entered by the family court on
August 1, 2022, in FC-S No. 17-00211 and the "Order Terminating
Parental Rights" entered by the family court on August 1, 2022,
in FC-S No. 20-00192.
DATED: Honolulu, Hawai#i, June 9, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Herbert Y. Hamada, Chief Judge
for Respondent-Appellant.
/s/ Keith K. Hiraoka
Stephanie W. Batzer, Associate Judge
for Court Appointed
Special Advocate Program. /s/ Karen T. Nakasone
Associate Judge
Gay M. Tanaka,
Julio C. Herrera,
Deputy Attorneys General,
Department of the Attorney
General,
State of Hawai#i,
for the Department of
Human Services.
9