In re: J.H. ( 2023 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-MAR-2023
08:07 AM
Dkt. 30 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
IN THE INTEREST OF JH
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-S NO. 18-00251)
MARCH 15, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ.;
AND WILSON, J., DISSENTING 1
OPINION OF THE COURT BY EDDINS, J.
At the start of this Child Protective Act case, the Family
Court of the First Circuit appointed attorneys for a mother and
father (Parents). Then, when Parents failed to appear at a
court hearing, the court discharged counsel. Later, Parents
reappeared, the court reappointed counsel, and the case
1 At the time of this opinion’s publication, Justice Wilson’s dissent is
forthcoming.
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progressed. After a trial, the family court terminated Parents’
parental rights.
Because the family court discharged Parents’ counsel before
the case had ended, the Intermediate Court of Appeals (ICA)
ruled that structural error occurred. It ordered a new trial.
A family court must timely appoint counsel in parental
rights cases. Otherwise, structural error will nullify an
outcome adverse to a parent. But the appointment, discharge,
and reappointment of counsel is different.
We hold that if the family court appoints counsel at the
onset of a parental rights case, and later there’s a break in
representation due to a parent’s voluntary absence, then there
is no structural error. As long as a fundamentally fair
procedure ensues and due process is satisfied, the family
court’s decision will stand.
I.
JH was born in October 2018. Soon after his birth, the
Department of Human Services (DHS) assumed custody of JH under
the Child Protective Act, Hawaiʻi Revised Statutes (HRS) §§ 587A-
8 and 587A-9. 2 Then DHS petitioned for temporary foster custody.
2
At birth, JH tested positive for unprescribed opiates. While
hospitalized in the Neonatal Intensive Care Unit at Kapi‘olani Medical Center,
JH was taken into police protective custody. See HRS § 587A-8 (2018):
(a) A police officer shall assume protective custody of a
child without a court order and without the consent of the
2
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The family court appointed counsel for both parents at the
first hearing on DHS’s petition.
In July 2019, at a continued hearing, the court ordered
Mother and Father to appear at a further hearing in 20 days.
The court cautioned Parents: if they didn’t appear on that date,
child’s family, if in the discretion of the police officer,
the officer determines that:
(1) The child is subject to imminent harm while in
the custody of the child’s family;
. . . .
(4) The child’s parent has subjected the child to
harm or threatened harm and the parent is likely to flee
with the child.
(b) The department shall assume temporary foster custody
of the child when a police officer has completed the
transfer of protective custody of the child to the
department as follows:
. . . .
(2) If the child is or will be admitted to a
hospital or similar institution, the police officer shall
immediately complete the transfer of protective custody to
the department by notifying the department and receiving an
acknowledgment from the hospital or similar institution
that it has been informed that the child is under the
temporary foster custody of the department.
Then, under HRS § 587A-9 (2018), DHS assumed temporary foster custody of JH.
(a) When the department receives protective custody of a
child from the police, the department shall:
(1) Assume temporary foster custody of the child if,
in the discretion of the department, the department
determines that the child is subject to imminent harm while
in the custody of the child’s family; [and]
. . . .
(5) Within three days, excluding Saturdays, Sundays,
and holidays:
(A) Relinquish temporary foster custody,
return the child to the child’s parents, and proceed
pursuant to section 587A-11(4), (5), or (6);
(B) Secure a voluntary placement agreement
from the child’s parents to place the child in foster
care, and proceed pursuant to section 587A-11(6) or
(8); or
(C) File a petition with the court.
3
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August 14, then the court could order a default judgment, decide
the petition, and award foster custody of JH to DHS.
Neither parent showed on August 14, 2019. The court
entered default judgments against Parents, waived their notice
of future hearings, and discharged their counsel effective
August 31, 2019. 3 The court advised counsel that if Parents
contacted them, then counsel could file an ex parte motion to
rescind the discharge order. The court also ordered the parents
to appear at a periodic review hearing on January 21, 2020.
One week before the scheduled periodic review hearing, DHS
moved to terminate Mother and Father’s parental rights. The
court scheduled this motion on the date of the periodic review
hearing.
Mother and Father appeared on January 21, 2020. So did
counsel. 4 Parents requested a trial on DHS’s motion to terminate
parental rights. Due to COVID-19 concerns and scheduling
conflicts, the court continued the trial date several times.
3 The Honorable Brian A. Costa presided.
4 Parents appeared with their counsel at the periodic review hearing
before the Honorable John C. Bryant. Nothing in the record, however,
reflects that the court reappointed counsel. There is also nothing in the
record – order-wise or otherwise - to reflect that Parents moved to set aside
their default. Instead, the proceedings just resumed as if the court had not
discharged Parents’ attorneys and defaulted Parents. The family court and
all parties - Mother, Father, DHS, and JH’s Guardian Ad Litem - proceeded as
if Parents’ counsel had been reappointed. This opinion likewise treats
Parents’ appearance with their attorneys as a reappointment of counsel.
4
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The trial on DHS’s motion to terminate parental rights
began nearly a year later, on January 7, 2021. 5 Trial also
happened on February 4, 2021 and March 30, 2021. The parents,
represented by counsel, appeared each day of their trial.
On April 26, 2021, the family court granted DHS’s motion.
The court terminated Mother and Father’s parental rights. It
awarded DHS permanent custody of JH. The court made the
necessary findings under HRS § 587A-33(a). 6 It also issued a
termination of parental rights order, letters of permanent
custody, and Findings of Fact and Conclusions of Law.
Parents appealed. The ICA ordered supplemental briefing.
It asked the parties to brief whether its holding in In the
Interest of J.M. and Z.M., 150 Hawaiʻi 125, 497 P.3d 140 (App.
2021) applied. That is, does the discharge of counsel during
parental rights proceedings violate a parent’s due process
rights and amount to structural error?
5 The Honorable Andrew T. Park presided over the trial.
6 HRS § 587A-33(a) (2018) reads:
(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 . . . .
5
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The ICA vacated the family court’s parental termination
order and remanded for a new trial. As with In re J.M., it
found structural error because the court discharged Parents’
counsel before the Child Protective Act proceedings had ended.
We accepted DHS’s cert application. DHS argues that there
is no structural error. DHS maintains that despite the
discharge of Parents’ counsel and the five-month gap in
representation, Parents received a fundamentally fair trial; due
process was satisfied.
II.
Parents have a substantive liberty interest to parent their
child. Haw. Const. art. I, § 5. They have a fundamental right
to care, control, and have custody of their children. In re
Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002).
Parents faced with losing their parental rights have a
right to counsel under the Hawai‘i Constitution’s far-reaching
due process clause. In re T.M., 131 Hawaiʻi 419, 434, 319 P.3d
338, 353 (2014). An indigent parent’s right to counsel kicks in
when parental rights are substantially affected. See In re
L.I., 149 Hawai‘i 118, 122, 482 P.3d 1079, 1083 (2021).
T.M. and L.I. involve the family court’s failure to timely
appoint counsel. We have not addressed what happens after a
court appoints counsel at the start of Child Protective Act
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(CPA) proceedings and later there’s a gap in representation due
to a parent’s failure to appear in court.
Here, the ICA ordered a retrial. Citing T.M., L.I., and In
re J.M., it believed the family court violated Parents’ article
I, section 5 due process right to counsel when it discharged
appointed counsel. The error is structural, said the ICA. So
Parents did not have to show that the court’s discharge of
counsel harmed them; the gap in Parents’ legal representation
was enough to vacate the order terminating their parental
rights. We disagree.
There is no structural error.
T.M. and L.I. do not require automatic reversal for
structural error when an indigent parent is not from start to
finish represented by court-appointed counsel in CPA
proceedings.
First, the ICA blends a failure to timely appoint counsel
and a discharge of counsel. This case differs from T.M. and
L.I. In those cases the family court belatedly appointed
counsel for indigent parents.
In T.M., all parties had counsel throughout the CPA
proceedings. But not TM’s 15-year old mother. The court
appointed counsel 19 months after DHS petitioned for temporary
foster custody, about five months before the hearing that
terminated her parental rights. Without counsel, TM’s mother
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had no legal advocate “to inform her of the limitations of the
guardianship approach and of the possibility that if other
options were pursued, her parental rights would be in jeopardy”;
“advise her of significant deadlines” (like the two-year cutoff
to provide a safe family home); or provide “necessary assistance
to prepare for the . . . termination hearing.” T.M., 131 Hawai‘i
at 432-33, 319 P.3d at 351-52. Mother may have kept her
parental rights had the court appointed counsel sooner. Id. at
433, 319 P.3d at 352.
T.M. held that courts must appoint counsel to indigent
parents once DHS petitions for custody. Requiring the family
court to appoint counsel “remove[d] the vagaries of a case-by-
case approach.” T.M., 131 Hawai‘i at 435, 319 P.3d at 354. A
right to counsel was established.
Then in L.I., the court held that the failure to timely
appoint counsel in cases that substantially affect parental
rights is structural error. There, the family court appointed
counsel three months after it awarded foster custody to DHS, and
eight months after DHS first petitioned for family supervision
of a mother’s then-only child. L.I., 149 Hawai‘i at 119-20, 123,
482 P.3d at 1080-81, 1084. The mother should have been
appointed counsel once DHS petitioned for family supervision:
“at that point, parental rights are substantially affected as
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foster custody can be ordered by the court at a subsequent
hearing.” Id. at 122, 482 P.3d 1083.
The present case is unlike T.M. and L.I. The court timely
appointed counsel at the start of the CPA proceedings, right
after DHS petitioned for temporary foster custody of JH. And
though the family court defaulted Parents and discharged their
attorneys, the court reappointed counsel when Parents
reappeared.
This is not a case where parents proceeded without counsel.
Rather, because of the child’s best interests, it’s a case that
at times necessarily proceeded without parents. The right to
counsel is not automatically violated when a beneficiary of that
right voluntarily absents themself from family court
proceedings.
There is no structural error for another reason. A
fundamentally fair process may still happen in discharge of
appointed counsel cases.
Structural errors affect the trial’s entire framework, its
structure. See State v. Reed, 135 Hawai‘i 381, 386, 351 P.3d
1147, 1152 (2015). Because a structural error makes the trial
“fundamentally unfair,” the trial is not subject to harmless
error review. See State v. Loher, 140 Hawai‘i 205, 214, 398 P.3d
794, 803 (2017). We have identified two features of a
structural error: (1) “certain rights protected by the Hawai‘i
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Constitution are so basic to a fair trial that their
contravention can never be deemed harmless”; and (2) “an error
may be properly considered structural when the impact of the
error on conviction is impossible to reliably assess and when
harmless error review would require the appellate court to
engage in pure speculation.” Id. at 222, 398 P.3d at 811(cleaned up).
Discharge of counsel cases do not present the same problems
that surface when courts do not appoint counsel in the first
place. If the court does not appoint counsel at the start of
CPA proceedings, then “the harm suffered by parents proceeding
without counsel may not be readily apparent from the record,
especially because without the aid of counsel, it is unlikely
that a case is adequately presented.” See T.M., 131 at 436, 319
P.3d at 355 (cleaned up).
A family court’s discharge of counsel, though, does not
necessarily make a trial fundamentally unfair or an unreliable
way to decide whether parental rights should terminate. Cf. In
re RGB, 123 Hawai‘i 1, 25, 229 P.3d, 1066, 1090 (2010) (observing
the failure to timely appoint counsel always calls “the justice
of the [trial] court’s decision . . . into serious question”).
Instead, the trial’s fundamental fairness turns on the case’s
circumstances.
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Third, there’s no structural error in discharge of counsel
cases because a bright-line rule – discharge of indigent
parents’ counsel at any stage constitutes structural error
requiring vacatur – is inflexible. It ignores when, how long,
and the reason parents’ counsel were discharged. And it pays no
attention to whether the proceedings were fundamentally fair.
There is still another problem with a structural error
approach to cases involving discharged counsel. Automatic
reversal and retrial cause friction with the key statutory time
frame parents must meet to provide a safe family home. See HRS
§ 587A-33(a). Parents have two years from a child’s entry into
foster custody to become willing and able to provide a safe
family home. This two-year deadline gives parents a reasonable
time to provide a safe family home. And it advances the child’s
interests in a prompt and permanent resolution of their custody
status. RGB, 123 Hawai‘i at 26, 229 P.3d at 1091.
Throughout a CPA case, family courts must protect a
parent’s fundamental right to parent their child. But if the
outcome of any break in counsel is vacatur and remand, then the
time it takes to permanently place a child drags on. A parent’s
choice not to appear in court or maintain contact with counsel
should not undermine a child’s interests in permanency. See
RGB, 123 Hawai‘i at 26, 229 P.3d at 1091 (finding that “it is in
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the child’s best interest and overall well being to limit the
potential for years of litigation and instability”).
Parents sometimes fail to show up in court. When a parent
inexcusably fails to appear in court, family courts often
invoke Hawai‘i Family Court Rules (HFCR) Rule 55(b). 7 The
parties neither question nor discuss this apparent first circuit
norm. 8 We stress that rule 55(b) should be used sparingly. And
because parents have a fundamental right to parent their
children, family courts should freely find good cause to set
aside a default when a parent resurfaces and re-engages in the
case. 9
Until then, however, it is a reasonable exercise of
discretion for the family court to discharge counsel. After
7 HFCR Rule 55(b) reads:
In a contested or uncontested action, where it appears from
the record and by testimony (or by affidavit or declaration
in an uncontested matrimonial action) that the adverse
party has been duly served with the complaint or
dispositive motion, and the adverse party has failed to
appear or otherwise defend as provided by these rules, the
court may grant an entry of default and proceed with a
proof hearing, when a hearing is required, and enter a
default judgment.
8 JH’s Guardian Ad Litem represented that “[t]he common procedure when a
parent fails to appear without good cause is for them to be defaulted, for
their counsel to be discharged if parents do not make contact within a
certain period of time, and for counsel to be re-appointed if parents do
reappear in the case, although the court’s ruling often depends on the
circumstances of the parents’ non-appearance.”
9 In some cases, a court cannot freely set aside a parent’s default
without undermining a child’s best interests and the CPA. For instance, if a
parental rights case nears its end, then a court may use its discretion -
after it provides a parent a fair process - to refuse a parent’s request to
set aside a default.
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all, what’s an attorney to do? If a parent chooses not to
appear in court or decides not to communicate with counsel, then
counsel is hard-pressed to understand the parent’s present
objectives, and is challenged to provide sound, ethical
representation. See State v. Wilson, 144 Hawai‘i 454, 463, 445
P.3d 35, 44 (2019) (explaining that “counsel has a duty to
consult with the defendant before making strategic decisions
when it is feasible and appropriate to do so”); Hawai‘i Rules of
Professional Conduct (HRPC) Rule 1.2 (providing “a lawyer shall
abide by a client’s decisions concerning the objectives of
representation, and . . . shall consult with the client as to
the means by which the objectives are to be pursued”).
An advisement or colloquy may help. We believe it is
useful for family courts to advise parents at the beginning of
Child Protective Act proceedings about the risks and
consequences of their failure to appear and the importance of
maintaining meaningful communication with counsel. See State v.
Kaulia, 128 Hawai‘i 479, 493, 291 P.3d 377, 391 (2013) (noting
“the best way to ensure a defendant’s constitutional rights are
protected is for the defendant to be informed of the nature of
the right and the consequences of waiving that right”).
III.
If there is no structural error after a family court
discharges counsel in CPA proceedings, then how does an
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appellate court determine whether the case satisfied due
process?
The court assesses the proceedings to see if they were
fundamentally fair.
This inquiry examines whether a parent received a
fundamentally fair process under the circumstances of the case.
We hold that a family court’s discharge of counsel during
proceedings that substantially affect parental rights only
violates a parent’s right to counsel if that discharge deprives
the parent of a fundamentally fair process.
Due process and fundamental fairness intertwine. To
satisfy article I, section 5, a judicial proceeding has to be
fundamentally fair. See RGB, 123 Hawai‘i at 25, 229 P.3d at 1090(explaining that with ineffective assistance of counsel claims
in CPA proceedings, courts should determine “whether it appears
that the parents received a fundamentally fair trial whose facts
demonstrate an accurate determination.”); State v. Uchima, 147
Hawai‘i 64, 76 n.14, 464 P.3d 852, 864 n.14 (2020) (explaining
that article I, section 5 requires “standards necessary to
ensure that judicial proceedings are fundamentally fair”)
(cleaned up)); Lassiter v. Dep’t of Soc. Servs. of Durham Cnty.,
N.C., 452 U.S. 18, 24 (1981) (finding that due process
“expresses the requirement of ‘fundamental fairness’”).
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Parents must receive “a fair procedure” before they lose
their parental rights. In re Doe, 99 Hawai‘i at 533, 57 P.3d at
458. The due process floor entails “notice and an opportunity
to be heard at a meaningful time and in a meaningful manner.”
Id. A fair procedure, though, is more than just notice and an
opportunity to be heard.
Due process is versatile. Context shapes the process that
is due. See Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res.,
136 Hawai‘i 376, 389, 363 P.3d 224, 237 (2015) (holding the due
process is “flexible and depend[s] on many factors”); Sandy
Beach Def. Fund v. City Council of City & Cnty. of Honolulu, 70
Haw. 361, 378, 773 P.2d 250, 261 (1989) (holding that “due
process is flexible and calls for such procedural protections as
the particular situation demands” (cleaned up)). Due process’s
versatility means that the discharge of counsel in CPA
proceedings “must be viewed in the broader context of . . . the
family court proceeding” as a whole. See RGB, 123 Hawai‘i at 27,
229 P.3d at 1092.
There is no violation of a parent’s due process right to
counsel when a family court discharges and later reappoints
counsel, and the case, viewed in its entire context, establishes
that the parent received a fundamentally fair trial and the
family court accurately determined that parental rights should
terminate. See id. at 25, 229 P.3d at 1090.
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IV.
Here, Parents received a fair procedure. They were
appointed counsel at the onset of the CPA proceedings and had a
meaningful opportunity to participate in their case with the aid
of counsel.
Parents benefitted from the assistance of court-appointed
counsel. Once the proceedings were underway, counsel
represented them for 22 of 27 months. The court discharged
Parents’ attorneys and defaulted Parents only after they
inexcusably failed to appear at a court hearing. But when they
did appear in court, so did counsel.
Parents’ ability to present their case was not materially
impacted by the five-month gap in legal representation. No
hearings happened after the court discharged counsel. And when
Parents reappeared on January 21, 2020 at the periodic review
hearing, counsel appeared beside them. From then on, counsel
represented Parents until the close of the trial on April 26,
2021, a trial that lasted three days and spanned three months.
On the final day of trial, before the family court
terminated Mother and Father’s parental rights, it confirmed
compliance with the key Child Protective Act criterion: parents
received the assistance of a service plan and “a reasonable
period of time” to provide their child a safe family home. See
HRS § 587A-33(a)(2).
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The family court ruled that DHS proved by clear and
convincing evidence that parental rights should terminate. See
HRS § 587A-33(a)(1), (2). The record shows that substantial
evidence supports the family court’s HRS § 587A-33(a)
termination of parental rights findings.
Due process was satisfied. Parents received a fair
procedure before the family court terminated their parental
rights. See In re Doe, 99 Hawai‘i at 533, 57 P.3d at 458.
V.
We reverse the ICA’s judgment on appeal filed on March 2,
2022. The Family Court’s April 28, 2021 Order Terminating
Parental Rights is affirmed.
Kelly M. Kersten /s/ Mark E. Recktenwald
(Abigail S. Dunn Apana, Julio
/s/ Paula A. Nakayama
Cesar Herrera, Patrick A.
Pascual, Regina Anne M. Shimada /s/ Sabrina S. McKenna
on the briefs)
/s/ Todd W. Eddins
for petitioner Department of
Human Services
Emily E.M. Hills
for Guardian Ad Litem
Clint K. Hamada and Herbert Y.
Hamada
for Father
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