In re: K Children, KK1, KK2, and KK3 ( 2022 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2022
07:52 AM
Dkt. 104 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF K CHILDREN,
KK1, KK2, and KK3
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 16-00196)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)
Appellant-Father (Father) appeals from the Decision and
Order Re: Motion to Terminate Parental Rights, filed on April 30,
2021, by the Family Court of the First Circuit (Family Court).1
In his appeal, Father challenges many findings of fact (FOFs) and
conclusions of law (COLs) in the Family Court's Findings of Fact
and Conclusions of Law, filed on June 24, 2021. He further
contends the record lacks clear and convincing evidence
supporting the Family Court's conclusions that: Father is not
willing and able to provide his three children (Children)2 a safe
family home and would not become willing and able to do so within
a reasonable period of time; and that Petitioner-Appellee State
of Hawai#i, Department of Human Services' (DHS) February 13, 2020
1
The Honorable Jessi L.K. Hall presided.
2
When trial started, on October 7, 2020, the Children were thirteen
(13), eight (8), and five (5) years old, respectively.
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permanent plan (Permanent Plan) is in the Children's best
interests. Father also asserts the Family Court abused its
discretion and/or committed structural error by denying his
choice of private counsel and by denying his request for a
continuance of trial, which prevented him from pursuing
reunification through joint therapy and from being represented by
counsel of choice.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Father's points of error as follows and we affirm.3
(1) Father contends the Family Court abused its
discretion and/or committed structural error in denying his
request for a further continuance of trial (which had previously
begun) to allow private attorney Andrea Graf (Graf) to represent
him at the continued trial in April 2021, pro bono, in place of
court-appointed counsel, Jacob Delaplane (Delaplane), or
alternatively, to be represented by both counsel "at no
additional cost" to the Family Court and without a continuance.
Father contends a criminal defendant's right to counsel under the
Sixth Amendment to the United States Constitution and article I,
section 14 of the Hawai#i Constitution "encompasses a right to
privately retained counsel of choice," State v. Maddagan, 95
Hawai#i 177, 179-80, 19 P.3d 1289, 1291-92 (2001), that the
denial of the right to counsel of choice in a criminal case is
structural error, State v. Cramer, 129 Hawai#i 296, 303, 299 P.3d
756, 763 (2013), and that the constitutional right to private
counsel of choice should extend to termination of parental rights
(TPR) cases.
Here, the Family Court denied Father's request to
continue trial for Graf to prepare because trial had already been
3
Father's opening brief, in the points of error and argument sections,
fails to properly cite to the record for asserted facts, which makes
addressing the issues very difficult. We address Father's contentions and
arguments to the extent they are discernable from our review of the record.
2
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continued for six months and the Children had been in foster care
for over four years. Father contends the Family Court erred by
failing to weigh the countervailing government interests
identified in Cramer. Even assuming arguendo4 the right to
private counsel of choice extends to TPR cases, "the interests
implicated by criminal and termination of parental rights cases
are substantially different. Most notably, termination of
parental rights proceedings implicate the interests of the child
in having a prompt and permanent resolution of his or her custody
status –- a factor that is absent in the criminal context." In
re RGB, 123 Hawai#i 1, 26, 229 P.3d 1066, 1091 (2010).
Accordingly, the Family Court did not abuse its discretion by
denying the continuance based on the length of time the Children
had been in foster care.
As to Father's alternative request to be represented by
both counsel without a continuance, we reject Father's position
that he was entitled to continued representation by court-
appointed counsel free of charge even if he retained additional,
private counsel. Cf. State v. Mickle, 56 Haw. 23, 27, 525 P.2d
1108, 1111 (1974) (holding that a criminal defendant is entitled
to a court-appointed attorney as an indigent defendant if he or
she "is unable to obtain counsel without substantial hardship to
himself or his family").
Accordingly, the Family Court did not abuse its
discretion in denying Father's request for a continuance, or in
the alternative, to be represented by both appointed and
privately retained counsel.5
4
In light of our obligation to abstain from deciding novel
constitutional issues where unnecessary, Hawaii Gov't Employees Ass'n v.
Lingle, 124 Hawai#i 197, 208, 239 P.3d 1, 12 (2010), we decline to address
whether the right to private counsel of choice extends to TPR cases because,
even if such a right exists, the Family Court did not violate it.
5
In conjunction with this argument, Father appears to contest the
Family Court's denial of his oral request at trial for a continuance to allow
him time to pursue reunification therapy. We construe this point as arguing
that the Family Court erred in prematurely terminating his parental rights,
which we address infra.
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(2) We review Father's challenges to the Family Court's
FOFs for clear error and its COLs de novo. Fisher v. Fisher, 111
Hawai#i 41, 46, 137 P.3d 355, 360 (2006). FOFs are clearly
erroneous when: (1) the record lacks substantial evidence to
support the finding, or (2) despite substantial evidence in
support of the finding, we are nonetheless left with a definite
and firm conviction that a mistake has been made. Id."'Substantial evidence' is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion." Id.Father challenges FOF 96, which provides, in part:
"When the Court awarded temporary foster custody of the Children
to the DHS in the FC-DA cases on September 23, 2016 . . . .
Father caused [Child 1] to reside with his aunt . . . . Father
did not cooperate with the DHS' requests to contact [aunt] to
turn over [Child 1] to the DHS." He contends there is no
evidence he did not cooperate in locating Child 1. However, the
September 2016 Safe Family Home Report states that "DHS requested
[Father] to contact his aunty to turn over [Child 1] to the DHS.
[Father] did not cooperate with the request or returned [sic] the
DHS' calls/texts." Therefore, FOF 96 is not clearly erroneous.
Father challenges FOFs 98, 99, 113, and 117,6 which
state:
98. Based on the credible evidence in the
record, and drawing all reasonable inferences from the
credible evidence, the Children know that Father and
Mother are their parents. However, the Children's
attachment figures, who they look to for, and who they
believe will provide them with physical and emotional
security and stability are [the Resource Care Givers
(RCGs)].
99. The Children's statements to their guardian
ad litem, Mr. Nagamine [(GAL)], the DHS, Dr. Steven
Choy, Ph.D., who conducted the mental health
assessments of the Children, and the Children's
respective therapists is that they want to continue to
reside with the [RCGs] and do not want to live with
either parent is credible, and the Court so finds.
6
Although Father cites FOF 115, based on his argument, it appears
Father intended to challenge FOF 117.
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. . . .
113. After being taken into foster care and
being placed in the safe and stable home of the
[RCGs], [Child 1] felt safe to make disclosures about
the conditions in family home before the September
2016 removal, such as being hit by Father and being
afraid of Father.
. . . .
117. [Child 1] has consistently stated that she
wants to continue to live with [the RCGs, who are] her
maternal grandparents, and that she does not want to
live with Father.
Father contends: there is no evidence that the RCGs are the
Children's "only sources of secure attachment" or that Child 1
felt safe to disclose Father's abuse only after being removed
from the family home; there is no basis to judge the Children's
credibility because the Family Court declined to meet with the
Children; and Child 1 told Father she wants to live with him.
The record contains multiple independent sources supporting the
challenged findings, including reports by the GAL and Mary
Greaney (Greaney), one of the Children's therapists. See State
v. Kwong, 149 Hawai#i 106, 112, 482 P.3d 1067, 1073 (2021) ("It
is for the trial judge as fact-finder to assess the credibility
of witnesses and to resolve all questions of fact; the judge may
accept or reject any witness's testimony in whole or in part.").
Thus, FOFs 98, 99, 113, and 117 are not clearly erroneous.
Father challenges FOFs 101 and 102, which state:
101. Throughout the pendency of this case,
Father alleged that the [RCGs] have coached and/or
coerced the Children to make negative statements about
Father, such as Father's negative statements and
conduct during visits, and to tell their therapists,
their GAL and the DHS that they want to live with the
[RCGs]. Based on the credible reports of Dr. Choy and
the expert testimony of [Child 1]'s therapist, Dr.
Borofsky, and [Child 2] and [Child 3]'s therapist,
Gina Eustaquio, [Licensed Mental Health Counselor], in
their opinions, the Children are not being coached
and/or coerced. Father's allegations about the [RCGs]
coaching/coercing the Children are not credible.
102. Since the Children's placement with the
[RCGs], Father has made negative allegations about the
[RCGs] during the pendency of this case.
(Footnote omitted.) Father contends there is no evidentiary
basis for FOF 101 because the RCGs did not testify, and the other
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evidence is not substantial. The Family Court relied on multiple
credible reports and testimony and FOF 101 is not clearly
erroneous. Kwong, 149 Hawai#i at 112, 482 P.3d at 1073. As to
FOF 102, Father admits to making negative allegations about the
RCGs but contends the allegations were proven true. Even if
true, this does not render FOF 102 clearly erroneous.
Father challenges FOFs 106, 107, and 108, which state:
106. Father's testimony that [RCGs' son] was
again living in the [RCGs'] home because [Child 2]
told that [sic] him that [RCGs' son] was living in the
[RCGs'] home is not credible.
107. At trial, Father testified that the [RCGs]
were allowing Mother to have unauthorized visits with
the Children, such as visits at the [RCGs'] home,
including unsupervised visits. According to the
credible reports of the DHS and the credible testimony
of the DHS [Child Welfare Services (CWS)] worker Ms.
Ober, the [RCGs] do not allow Mother to be at their
home, and that Mother is only given telephonic or
virtual visits. Further, according to Ms. Ober's
credible testimony, [maternal grandmother] keeps a log
documenting Mother's and Father's contact with the
children, but Ms. Ober had not viewed the logs
recently (at the time of the April 2021 trial
proceedings). There is no credible evidence
corroborating Father's allegations, such as statements
made by the Children to the DHS, the GAL, or their
respective therapists. Father's testimony in this
regard is not credible.
108. Father's testimony that the [RCGs] were
having marital problems and were in the process of
obtaining a divorce, and that the [RCGs'] daughter and
her family were living in the [RCGs'] home is not
credible.
(Footnote omitted.) Father contends the record lacks any basis
to find his allegations are not credible because they were not
refuted. Though his allegations were not refuted, they were also
not corroborated, and the Family Court is free to weigh the
evidence and assess credibility. Kwong, 149 Hawai#i at 112, 482
P.3d at 1073. Thus, FOFs 106-108 are not clearly erroneous.
Father Challenges FOFs 127, 128, 136, 137, 142, and
147, which state:
127. Based on the credible reports and expert
testimony of Ms. Greaney, [Child 2] suffered from
trauma symptoms caused by the trauma she suffered when
she resided with Father and Mother. Said trauma
includes being hit by Father and witnessing Mother
having sex.
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128. Per Ms. Greaney, [Child 2] has a negative
attachment with Father, although she generally enjoyed
visits with Father.
. . . .
136. [Child 2] is indifferent about having
visits with Father and Mother.
137. During the March 11, 2021 virtual visit
with Father, [Child 2] told Father that she did not
want to live with him, and that she wanted to live
with her maternal grandparents, the [RCGs]. In
response to Father's question, [Child 2] denied that
she was being coached. Father became upset and told
[Child 2] that he would not be seeing her anymore if
this was the case. [Child 2] was upset about Father's
statement. [Child 2]'s account of the March 11, 2021
virtual visit is credible, and Father's testimony
denying this account of the March 11, 2021 virtual
visit is not credible.
. . . .
142. Per Ms. Greaney, [Child 3] does not have a
strong attachment with Mother or Father.
. . . .
147. [Child 3] is indifferent about having
visits with Father and Mother.
Father contends there is insufficient evidence that he hit Child
2, that Child 2 has a negative attachment towards him, that Child
3 lacks a strong attachment to him, or that Child 2 and Child 3
are indifferent about having visits with him because reports
indicate that they enjoy the visits. He contends Greaney had to
be removed from the case because she was resistant to
reunification, and there is no basis to find that his account of
the March 11, 2021 virtual visit was not credible because it was
not refuted.
FOFs 127, 128, and 142 come directly from Greaney's
October 7, 2020 trial testimony based on her time with Child 2
and Child 3, and FOFs 136, 137 and 147 come directly from
therapist Gina Eustaquio's (Eustaquio) March 30, 2021 Play
Therapy Summary Report and her April 21, 2021 trial testimony
based on her sessions with Child 2 and Child 3. Therefore,
Father's contention there was insufficient evidence to
support these findings is without merit.
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With regard to Father's visits, Eustaquio testified
that both Child 2 and Child 3 have expressed they like talking to
Father and seeing Father "but it's ok if they don't too."
Eustaquio further testified that for Child 2 and Child 3, "[i]f
it happens, okay. If not, it's okay[,]" and "[i]t's not like
they're waiting for this call to happen." Moreover, Father's
denial of Child 2's account of the March 11, 2021 virtual visit
is refuted by Eustaquio's March 30, 2021 report and trial
testimony in which Eustaquio explained the details of Child 2's
account of the visit and how it made Child 2 feel.
Further, Greaney was removed from the case because she
had scaled down her practice and would not be able to assist with
reunification therapy. Thus, FOFs 127, 128, 136, 137, 142, and
147 are not clearly erroneous. Kwong, 149 Hawai#i at 112, 482
P.3d at 1073.
Father challenges FOFs 149, 150, 152, 153, 157, and
159, which state:
149. Based on the information available at the
beginning of the case, the Children were subjected to
neglect, threat of abuse and the threat of neglect by
the acts and/or omissions of Father and Mother due to
Father's and Mother's mutual [Hawaii Revised Statutes
(HRS)] Chapter 586 temporary restraining orders
against each other, in which both included the
Children, thereby leaving the Children without a legal
caretaker. Based on the credible evidence, the harm
and threatened harm to the Children was not solely
based on the Children not having a legal caretaker
caused by the mutual temporary restraining orders.
150. [Child 1] and [Child 2] were exposed to
violence between Father and Mother, but [Child 3], who
lived with Father and Mother from her birth to when
she was 13 months old, does not have any cognitive
memory of the violence between Father and Mother.
During the DHS' initial investigation and assessment
of the family, Father and Mother both denied being the
aggressor during the incidents of violence between
them in the family home, and accused each other of
coaching/coercing [Child 1] and [Child 2] about making
statements about the violence in the family home.
[Child 1] stated that Mother hit Father, but Father
did not hit Mother. [Child 2] stated that when Father
hit Mother, she felt scared and [Child 1] took her and
[Child 3] upstairs.
. . . .
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152. During the DHS' initial investigation,
[Child 1] stated that she was not afraid of Father and
wanted to "stay" with Father. However, during therapy
with Dr. Amelia Borofsky, Psy.D., [Child 1] stated
Father used to physically hit her and that she was
afraid of him. The Court finds Dr. Borofsky's report
and testimony about [Child 1]'s disclosure to be
credible, and the Court so finds.
153. During therapy with Ms. Greaney, [Child 1]
disclosed that she found Mother after Mother's two
suicide attempts, and that Father was mad at [Child 1]
for not watching Mother. [Child 1]'s disclosure to
Ms. Greaney, as stated in Ms. Greaney's reports and in
her testimony is credible, and the Court so finds.
. . . .
157. Based on the credible evidence of the care
[Child 1] and [Child 2] received while the Children
were residing with Father and Mother, [Child 1]'s and
[Child 2]'s exposure to violence between Father and
Mother, and Mother and especially Father's use of
inappropriate physical discipline, and drawing all
reasonable inferences, [Child 1] and [Child 2]
suffered trauma while they were living with Mother and
Father which affected their present ability to
function, and the Children were subject to threatened
harm.
. . . .
159. Father's problems/safety issues that
subjected the Children to harm and threatened harm,
and that prevent him from providing a safe home for
the Children are domestic violence, the use of
inappropriate physical discipline and inappropriate
parenting skills. At the beginning of the case, the
DHS had concerns about Father's use of marijuana,
which Father stated was for medicinal purposes. At
the time of trial, the use of marijuana did not appear
to be a concern.
Father contends the claimed exposure to violence was not
corroborated, there is no basis to determine Dr. Amelia
Borofsky's (Dr. Borofsky) credibility, regarding FOF 153 there is
no credible evidence that Father was actually angry with Child 1,
and the DHS-assigned social worker, Tracy Ober (Ober), testified
that Father's only safety issues were parenting ability, anger,
and general counseling.
These FOFs concern the safety issues that subject the
Children to harm, or threat of harm, and Father's inability to
provide a safe home for the Children, which are the basis for
DHS's petition for foster custody; these findings are supported
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by DHS's independent investigation and interviews of Child 1 and
2. The Family Court acted within its discretion in accepting Dr.
Borofsky's testimony. Kwong, 149 Hawai#i at 112, 482 P.3d at
1073. Thus, FOFs 149, 150, 152, 153, 157, and 159 are not
clearly erroneous.
Father challenges FOFs 160, 166, and 170-172, which
state:
160. Father completed a parenting education
program, but his behavior does not follow what was
taught in the class.
. . . .
166. Father's conduct during visits raised a
significant concern about his ability to safely and
appropriately parent the Children, and to empathize
with the Children's feelings.
. . . .
170. During the March 20, 2019 visit, while
walking to the park, [Child 1] and [Child 2] went to
the restroom. Father asked them where they wanted to
live and recorded their responses on his cell phone.
Both [Child 1] and [Child 2] told the visitation
specialist not to address the situation with Father
because they were afraid of how he would react.
171. During this period, Father told [Child 2]
and [Child 1] that he would move away if they do not
want to live with him.
172. Father's conduct in questioning [Child 1]
and [Child 2] and where they wanted to live and
recording their responses and his statement that he
would move away if they do not want to live with him
caused [Child 1] and [Child 2] to be distressed, and
increased their negative feelings.
Father contends the DHS social worker did not testify about what
was covered in the class and where Father was deficient, the
overwhelming majority of visits with the Children were positive,
and there is insufficient evidence that he filmed the Children
and threatened to move away if the Children did not want to live
with him.
Even if Father completed a parenting class, he must be
able to demonstrate what he learned, and the record contains many
examples that his parenting skills are, at times, inappropriate,
despite that his interactions were primarily positive. Further,
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FOFs 170, 171, and 172 are supported by the Ohana Time
Observation Forms for the March 20, 2019, and April 3, 2019
visits and Greaney's April 1, 2019 Treatment Update, which
describe Child 1 and Child 2's reports to the Ohana Time
Supervisor and Greaney of Father's conduct. Thus, Father fails
to demonstrate that FOFs 160, 166, 170, 171, and 172 are clearly
erroneous.
Father challenges FOF 163, which states:
163. Father's September 2018 psychological
evaluation has inconsistencies and/or omissions. In
his self-report during the evaluation, Father did not
mention/disclose the violence between him and Mother,
and he stated that he used time-outs to discipline the
Children. As stated above, [Child 1] and [Child 3] 7
credibly disclosed Father's violent conduct towards
Mother, and Father's use of physical discipline which
resulted in both [Child 1] and [Child 2] being afraid
of Father.
Father contends the psychiatrist who conducted his psychiatric
assessment knew about the allegations of domestic violence and
yet recommended minimal need for counseling and the importance of
reunification with Father. Even if true, Father did not disclose
these allegations in his self-report; thus, he fails to show FOF
163 is clearly erroneous.
Father challenges FOF 164, which states:
164. Throughout the pendency of this case,
Father has not consistently participated in visits
with the Children. He missed scheduled visits or
failed to confirm visits, and was late for visits.
Father's inconsistency in visiting with the Children
raises concerns about his ability to manage his time,
especially if the Children were returned to his care.
Father contends DHS is to blame for the inconsistent visits
because DHS repeatedly denied visits if Father did not confirm on
time and denied face-to-face visits in the year preceding trial
due to Covid.
Father agreed to confirm visits as part of his
visitation agreement with DHS, Father missed many visits due to
his failure to confirm, and DHS's denial of face-to-face visits
7
We note that the Family Court appears to have mistakenly identified
Child 3 where the court intended to identify Child 2.
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due to Covid concerns did not cause his inconsistent visits.
Substantial evidence supports FOF 164.
Father challenges FOF 174, which provides: "174.
Father was informed of the Children's activities and was invited
to attend the activities. [Child 1] did not want Father to
attend her activities." He contends the RCGs and DHS refused to
tell him about these activities. This argument is contradicted
by FOF 175, which states that "Father testified that he did not
attend activities due to the fact that he was not provided with a
schedule. Father's testimony on this issue is not credible." As
FOF 175 is unchallenged, it is binding on the court. See In re
Doe, 99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002) (unchallenged
findings of fact are binding on appeal). Thus, FOF 174 is not
clearly erroneous.
Father challenges FOFs 190, 193, and 194, which state:
190. Father testified that he did not request
assistance from DHS in seeking a therapist as he felt
in the past he requested assistance and he did not
receive any help. Father further testified that he is
now willing to accept assistance from DHS.
. . . .
193. Based on the credible expert testimony of
DHS CWS unit supervisor Ms. Soria, and the Court so
finds, from January 2021 to April 2021, Father failed
to inform the DHS about his problems with finding a
new therapist and his need for assistance from the
DHS. Further, according to Ms. Soria, the DHS would
have assisted Father in finding a new therapist, and
would have recommended the Waianae Coast Comprehensive
Health Center because Father was now living on the
Leeward Coast. He did not call the Waianae Coast
Comprehensive Health Center when he was looking for a
new therapist.
194. While the DHS could have reached-out to
Father to inquire about his efforts to find a new
therapist and to offer its assistance to Father,
Father also bears responsibility to ask for assistance
from the DHS, either directly or through his counsel.
Father contends he always welcomed DHS's assistance in securing a
therapist; Ober's supervisor, Debbie Soria (Soria), testified she
was aware in January 2021 that Father had not been able to secure
a therapist; and Graf informed the Family Court in April 2021
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that she was assisting Father in securing a therapist. However,
Ober and Soria testified that neither Father nor Father's counsel
contacted DHS for assistance in finding a therapist. Father has
not demonstrated that FOFs 190, 193, and 194 are clearly
erroneous.
Father challenges FOFs 198, 203, 204, 205, and 206,
which state:
198. Under the circumstances presented by the
case, [Father] and [Mother] were given every
reasonable opportunity to demonstrate positive changes
and able [sic] to provide a safe family home and to
reunify with the Children.
. . . .
203. Under the circumstances presented in this
case, the DHS made reasonable efforts to prevent or
eliminate the need to remove the Children from the
family home.
204. Each of the service plans offered by the
DHS and ordered by the Court were fair, appropriate,
and comprehensive.
205. Under the circumstances presented by this
case, the DHS has exerted reasonable and active
efforts to reunify Father and Mother with the Children
by identifying necessary, appropriate and reasonable
services to address the identified safety
issues/problems, and by making appropriate and timely
referrals for these services. Any delays in the
delivery of services were due to Father's and Mother's
conduct.
206. Under the circumstances presented in this
case, the DHS treated Father and Mother fairly and
serviced the entire family since the inception of DHS
and Family Court intervention with this family.
Father contends that: DHS did not give him every opportunity to
demonstrate positive changes because Ober did not communicate
with him and repeatedly blocked him from having visits; DHS
should have advocated for dismissal of Mother's "retaliatory"
temporary restraining order so the Children would not have been
left without a caretaker; the Family Court had to order DHS to
provide Father a referral for a psychological exam; DHS's
referrals were untimely; and though Father completed his
services, DHS made it "impossible" to demonstrate his parenting
abilities because it denied face-to-face visits due to the Covid
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pandemic. Father also8 argues that: DHS repeatedly denied
Father reasonable visitation with the Children and there were
virtually no visits from September 2016 to April 2017; it was
"draconian" for DHS to require a confirmation call or the visit
would be cancelled; Father consistently objected to DHS's
reasonable reunification efforts; and it was unreasonable for DHS
to keep the Children in therapy for so long without a therapy
goal of reunification.
These arguments concern DHS's reasonable reunification
efforts under HRS § 587A-2 (2018). "DHS is under an obligation
to provide a reasonable opportunity to parents through a service
plan to reunify the family" and "to make reasonable efforts to
reunite parent and child." In re Doe, 100 Hawai#i 335, 343, 60
P.3d 285, 293 (2002) (interpreting HRS Chapter 587, the
predecessor to HRS Chapter 587A). An objection to DHS's
reasonable efforts or a claim for additional services must be
timely made or the issue is waived. Id. at 343-44, 60 P.3d at
293-94.
Father provides no authority supporting his argument
that DHS was obligated to advocate for dismissal of Mother's
temporary restraining order, and DHS confirmed the threat of harm
by Father independent of Mother's temporary restraining order.
See FOF 149.
Father raised the issue of visitation in December 2016
for the holidays and Child 2's birthday, but because he also
raised safety issues regarding placement with the RCGs, the
Family Court ordered that DHS's investigation into placement
would have priority over visitation. In January 2017, DHS
confirmed that the RCGs' home was safe, but Father did not raise
the issue of visitation again until a March 2017 hearing.
Thereafter, Father attended three out of a possible twenty-five
8
Father's arguments concerning FOFs 198, 203, 204, 205, and 206 and
generally concerning DHS's reunification efforts, including visitation and
services, come from both the Points of Error and Argument sections of his
Opening Brief.
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visits and did not raise the issue of visitation again until DHS
filed the Motion to Terminate in December 2017. Despite the
pending Motion to Terminate, Father remained inconsistent with
visits throughout the case. Thus, the record does not
demonstrate that DHS caused Father's lack of visits with
children.
Father fails to explain how it is impossible to
demonstrate his parenting abilities to DHS's satisfaction
electronically via "Zoom"; moreover, Father consistently missed
both face-to-face and Zoom visits with the Children due to his
failure to show up or to call to confirm.
The Children's therapists testified that the Children
would not respond positively to reunification therapy. Father
agreed to DHS's policy of requiring confirmation calls prior to
visits, and he provides no authority for his assertion that the
requirement is unreasonable or "draconian."
Father's argument that DHS failed to provide a timely
referral for a psychological exam has some support. Notably,
Father indicated a willingness to complete services only after
DHS filed its Motion to Terminate his parental rights. At a
hearing on February 16, 2018, the Family Court ordered DHS to
make referrals. At a hearing on July 5, 2018, Father
subsequently complained about not receiving a referral for a
psychological assessment, and Ober represented that it was not
required by the current service plan, but that DHS would make the
referral anyway. Ober appears to have misstated or misread the
service plan, which required "Psychological Evaluation and all
recommended services (if recommended by or in consultation with
clinical psychologist)." Thus, it appears DHS delayed for five
months in referring a psychologist, and we therefore strike as
clearly erroneous the portion of FOF 205 finding that "Any delays
in the delivery of services were due to Father's and Mother's
conduct." However the Family Court continued the trial at
Father's request based on the results of his psychological
assessment, and trial ultimately did not commence for a further
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two years. Thus, DHS's delay in referring a psychologist did not
prejudice Father and the delay was due in part to Father's
conduct as well.
Thus, FOFs 198, 203, 204, 206, and the remaining
portion of 205 are not clearly erroneous.
Father challenges FOFs 207, 208, and 210, which state:
207. None of the underlying facts and data upon
which the DHS based its opinions, assessments and
recommendations were shown to be unreliable or
untrustworthy. The DHS' continuing assessments in
this case were conducted in an appropriate manner.
Witnesses
208. The expert testimony of the DHS Child
Welfare Services worker Tracy Ober, testifying on
behalf of DHS, is credible.
. . . .
210. The expert testimony of Mary Greaney,
[Licensed Marriage and Family Therapist] is credible.
He contends Ober was not credible because the Family Court
ordered her supervisor to be present at all hearings, and Greaney
was not credible because she was ordered off the case.
The Family Court ordered Ober's supervisor to attend
future hearings to address potential concerns as to whether DHS's
actions are appropriate. The Family Court ordered Greaney off
the case because she would not be able to assist with
reunification therapy as she had scaled down her practice.
Neither action relates to credibility, and we decline to reassess
witness credibility. In re Jane Doe, 95 Hawai#i 183, 196-97, 20
P.3d 616, 629-30 (2001). Thus, FOFs 207, 208, and 210 are not
clearly erroneous.
(3) Father challenges FOFs 196 and 197, and COLs 19 and
20, which state:
l96. [Father] and [Mother] are not presently
willing and able to provide the Children with a safe
family home, even with the assistance of a service
plan.
197. It is not reasonably foreseeable that
[Father] and [Mother] will become willing and able to
provide the Children with a safe family home, even
with the assistance of a service plan.
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. . . .
Conclusions of Law
. . . .
19. The Children's legal mother, legal father,
adjudicated, presumed, or concerned natural father, as
defined under HRS Chapter 578, are not presently
willing and able to provide the Children with a safe
family home, even with the assistance of a service
plan.
20. It is not reasonably foreseeable that the
Children's legal mother, legal father, adjudicated,
presumed, or concerned natural father, as defined
under HRS Chapter 578, will become willing and able to
provide the Children with a safe family home, even
with the assistance of a service plan, within a
reasonable period of time.
Father contends his only remaining safety issue was his parenting
abilities, which he was unable to demonstrate because he was not
allowed face-to-face visits due to Covid, and that it was
foreseeable he would be able to demonstrate his parenting ability
because he completed all other required services. He also
contends9 it was premature to terminate his parental rights
because he should have been afforded more time to find a
therapist for reunification therapy, DHS failed to refer a
therapist, and Dr. Borofsky testified that he would not need his
own therapist to facilitate reunification therapy thus Father
could have started reunification therapy without delay.
These arguments relate to HRS § 587A-33(a) (2018),
which provides the following standard for termination of parental
rights:
(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
9
Father's arguments concerning his willingness and ability to provide
a safe family home with the assistance of a service plan come from both the
points of error and the argument section of his Opening Brief.
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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. In reaching this
determination, the court shall:
(A) Presume that it is in the best interests of
the child to be promptly and permanently placed
with responsible and competent substitute
parents and family in a safe and secure home;
and
(B) Give greater weight to the presumption that
the permanent plan is in the child's best
interest, the younger the child is upon the
child's date of entry into foster care[.]
Assuming arguendo Father's only remaining safety issue
was parenting ability, as discussed, Father fails to explain how
it is impossible to demonstrate parenting skills via Zoom visits
where the record indicates his primary parenting issues are
consistency and appropriateness during visits, which Father could
demonstrate by attending all Zoom visits and remaining
appropriate with his Children during visits. The case had been
pending for over four years, which is more than two years beyond
the statutory maximum, and in that time, Father has failed to
consistently demonstrate his parenting ability through consistent
and appropriate visits. Thus, there was substantial evidence
from which the Family Court could find by clear and convincing
evidence that it was not reasonably foreseeable Father would
become willing and able to provide a safe family home, even with
the assistance of a service plan, within two years after
placement. FOFs 196 and 197 are not clearly erroneous, and COLs
19 and 20 are not wrong.
For these same reasons, we also conclude that the
Family Court did not abuse its discretion in denying Father's
oral request at the conclusion of DHS's case for a continuance of
trial for Father to pursue reunification therapy.
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(4) There is clear and convincing evidence the
Permanent Plan was in the Children's best interest. Father
challenges FOFs 199-201 and COLs 21-24, which state:
199. Having made the HRS § 587A-33(a)(l) and (2)
"parental unfitness" findings of fact, by clear and
convincing evidence, the Court makes the following
findings of fact regarding the Permanent Plan, dated
February 13, 2020, pursuant to HRS § 587A-33(a)(3).
200. The permanency goal of the February 13,
2020 Permanent Plan is adoption. The permanent plan
goal of adoption is in accord with the HRS § 587A-
32(a)(3) [sic] presumption that the goal of adoption
is in the Children's best interests.
201. The Permanent Plan, dated February 13,
2020, with the permanency goal of adoption, is in the
Children's best interests.
. . . .
Conclusions of Law
. . . .
21. Having made conclusions of law pertaining to
"parental unfitness" pursuant to HRS § 587A-33(a)(l)
and (2), the Court makes the following conclusions of
law regarding the Permanent Plan, dated February 13,
2020, pursuant to HRS § 587A-33(a)(3).
22. The permanent plan goal of adoption is
presumed to be in the child's [sic] best interests.
HRS § 587A-32(b)(1) [sic].
23. The HRS § 587A-33(a)(3)(A) presumption that
it is in the Children's best interests to be promptly
and permanently placed with responsible and competent
substitute parents and family in a safe and secure
home has increased in importance because [of] the
Children's respective ages at the time of their
November 22, 2016 Date of Entry Into Foster Care. HRS
§ 587A-33(a)(3)(B).
24. The Permanent Plan, dated February 13, 2020,
with the permanency goal of adoption, is in the best
interests of the Children.
Father contends only that the Permanent Plan was not in the
Children's best interest because he was not afforded a reasonable
opportunity for reunification. Father's argument does not
demonstrate error as to the Family Court's determination
regarding the Children's best interests. The Family Court's
determination regarding the best interest of the Children is in
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accord with the statutory presumptions in HRS § 587A-33(a)(3)(A)
and (B), and the record in this case.
Based on the foregoing, we affirm the following,
entered in the Family Court of the First Circuit: (1) the April
30, 2021 Decision and Order Re: Motion to Terminate Parental
Rights; and (2) the June 24, 2021 Findings of Fact and
Conclusions of Law, with the exception of the portion of FOF 205
finding that "Any delays in the delivery of services were due to
Father's and Mother's conduct[,]" which we hold is erroneous, but
was harmless error.
DATED: Honolulu, Hawai#i, June 27, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Jacob G. Delaplane
for Father-Appellant /s/ Karen T. Nakasone
Associate Judge
Patrick A. Pascual,
Julio C. Herrera, /s/ Sonja M.P. McCullen
Erin K.S. Torres, Associate Judge
Ian T. Tsuda,
Deputy Attorneys General,
for Petitioner-Appellee
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