In re: AS ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2022
08:12 AM
Dkt. 41 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF AS
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 20-00057)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)
Appellant Mother (Mother) appeals from the Family Court
of the First Circuit's (Family Court) May 24, 2021 Order
Terminating Parental Rights.1 In doing so, Mother raises four
points of error, and challenges Findings of Fact (FOF) Nos. 37 to
41, 48, 49, and 53.2
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Mother's points of error as follows:
(1) Mother first contends that the Family Court abused
its discretion when it denied her requests to continue trial on
1
The Honorable Andrew T. Park presided.
2
Mother also challenges Conclusions of Law ( COL) Nos. 9 and 10 because
they "erroneously cite[] [Hawaii Revised Statutes ( HRS)] chapter 578A . . . ."
The citation to HRS chapter 578A appears to be a typographical error.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
March 2, 2021 and May 24, 2021. Mother acknowledges that she
participated in both proceedings via WebEx and phone, but argues
there is nothing in the record to demonstrate she was able to see
a witness testify, thereby, denying her due process right to
confront witnesses against her.
Generally, civil litigants have a due process right to
be present but that right is not absolute, it is a qualified
right. Onaka v. Onaka, 112 Hawai#i 374, 381, 146 P.3d 89, 96
(2006). Absent violation of a fundamental right, the relevant
inquiry is whether the family court abused its discretion in
granting or denying a motion to continue. Id. at 382, 146 P.3d
at 97.
We review a trial court's decision to grant or deny a motion
to continue for an abuse of discretion. . . .
It is well established that an abuse of discretion occurs if
the trial court has clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party-litigant.
Id. at 378, 146 P.3d at 93 (citations, internal quotation marks,
and brackets omitted). Moreover, there is no fundamental right
to have trial commence at the time of Mother's choosing. Id. at
381-82, 146 P.3d at 96-97. Thus, Mother's qualified right to be
present at her civil proceeding was not obstructed because the
Family Court did not preclude her from attending. And, as Mother
acknowledges, she attended the hearing, albeit by Webex.
As to Mother's argument that she was denied the right
to confront a witness, the constitutional guarantee of criminal
defendants to confront their accusers has no direct application
in proceedings to terminate parental rights. In re Doe Children,
85 Hawai#i 119, 124, 938 P.2d 178, 183 (App. 1997) (citation
omitted).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Nevertheless, prior to the Family Court receiving
testimony on March 2, 2021, Mother confirmed she was able to see
and hear the proceeding. The Family Court stated Mother would be
able to see witnesses that testify because the video will jump
back and forth as a microphone is activated. Throughout the
March 2, 2021 proceeding, Mother did not indicate that she could
not hear or see a witness testify; she instead stated that her
cell phone battery was low and she could not find a plug. When
Mother's connection dropped, the Family Court stopped the hearing
and continued the matter to May 24, 2021. On May 24, 2021,
Mother appeared by phone, and she was the only witness to
testify. Mother's attorney was present in the courtroom at both
hearings.
In sum, Mother's due process rights were not violated
on March 2, 2021 because Mother attended the proceeding and there
was no indication that she could not see or hear the witness.
Also, there was no witness to confront on May 24, 2021 because
Mother was the only witness to testify. Thus, the Family Court
did not abuse its discretion by denying Mother's request for a
continuance.
(2) Mother next contends that the Family Court erred in
finding she was not willing and able to provide her child (AS)
with a safe family home. The Family Court found Mother failed to
participate in the following court-ordered service plans:
(1) substance abuse assessment, random drug urinalyses and to
demonstrate consistent and prolonged sobriety; (2) a parenting
education program; (3) individual therapy; and (4) a domestic
violence program. The Family Court also found that Mother had no
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
insight as to her recurring problems with substance abuse and
domestic violence, and that lack of insight negatively impacts a
parent's ability to resolve those problems.
Mother provides no analysis as to why these findings
are clearly erroneous. Based on Mother's prior history with the
Department of Human Services (DHS), Mother had substance abuse,
domestic violence, and homelessness issues. Deborah Easton
(Easton), a DHS social worker, testified Mother could not
currently provide a safe family home, even with the assistance of
a service plan, because the services necessary to help Mother
with skills to provide a safe home were not completed, she was
still using substances, and the conditions that existed at the
beginning of the case had not been addressed. Thus, substantial
evidence existed to show that Mother was not presently willing
and able to provide a safe family home, even with the assistance
of a service plan.
(3) Mother also contends that the Family Court clearly
erred by finding it was not reasonably foreseeable 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.
A parent's history of compliance or noncompliance with
service plans is relevant and probative of a parent's capacity to
provide a safe family home as well as whether it is reasonably
foreseeable a parent will become willing and able to provide a
safe family home, with the assistance of a service plan, within a
reasonable period of time. In re Doe, 95 Hawai#i 183, 196, 20
P.3d 616, 629 (2001). Easton stated Mother had a pattern of not
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
participating in services based on her prior history with her
other children, and in the present case when she failed to
participate or complete services after three referrals by DHS.
Moreover, AS entered foster care on April 28, 2020, and
more than one year later, when the proceeding on the Motion to
Terminate Parental Rights was held in May 2021, Mother had merely
scheduled parenting class and domestic violence services. She
also had not begun to address her substance abuse issue. Thus,
the Family Court did not clearly err by finding it was not
reasonably foreseeable 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 the date AS entered foster care. See HRS § 587A-33(a)(2)
(2018).
(4) Finally, Mother contends that the Family Court
erred by failing to make specific findings as to which factors in
HRS § 587A-7 (2018) were relied upon in terminating Mother's
parental rights, denying the appellate court from reviewing the
findings. The Family Court must consider the factors stated in
HRS § 587A-7. In re HK, 142 Hawai#i 486, 421 P.3d 694,
Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2018 WL 3201647 at *3
(App. Jun. 29, 2018) (SDO). However, nothing in HRS § 587A-7
expressly requires the Family Court to recite the enumerated
factors in its findings. To that point, the Family Court "is
required to only make brief, definite, pertinent findings and
conclusions upon the contested matters; there is no necessity for
over-elaboration of detail or particularization of facts." Doe
v. Roe, 5 Haw. App. 558, 565, 705 P.2d 535, 542 (1985) (citation
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
and internal quotation marks omitted). Here, the findings and
conclusions were sufficient to allow for appellate review.
Therefore, IT IS HEREBY ORDERED that the Order
Terminating Parental Rights, entered on May 24, 2021, in the
Family Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, January 26, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Randal I. Shintani,
for Mother-Appellant. /s/ Karen T. Nakasone
Associate Judge
Eric J. Alabanza and
Julio C. Herrera, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
for Petitioner-Appellee,
The Department of Human
Services.
6