In re: IK, JK, SK, RK, and KK ( 2021 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-SEP-2021
08:02 AM
Dkt. 71 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF IK, JK, SK, RK, and KK
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(FC-S NO. 18-00035)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Respondent-Appellant Mother (Mother) appeals from the
Decision and Order Terminating the Parental Rights of [Father]
and [Mother] and Awarding Permanent Custody (Termination Order),
entered December 8, 2020, in the Family Court of the Fifth
Circuit (Family Court),1 terminating her and Respondent Father's
(Father)2 (together, Parents) parental rights to IK, JK, SK, RK,
and KK (Children).
On appeal, Mother raises four points of error, that the
Family Court: (1) clearly erred in entering findings of fact
(FOFs) C, EE, and WW; (2) abused its discretion in entering mixed
conclusions of law and findings of fact (Mixed Conclusions and
Findings) RR, XX, and BBB; (3) abused its discretion in finding
that there was clear and convincing evidence she was not
presently, and would not be in the reasonably foreseeable future,
willing and able to provide the Children a safe family home, even
1
The Honorable Edmund D. Acoba presided.
2
Father is not a party to this appeal.
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with the assistance of a service plan; and (4) abused its
discretion in terminating her parental rights. Mother contends
the Family Court prematurely terminated her parental rights given
that: she completed all services required by Petitioner-Appellee
State of Hawai#i Department of Human Services (DHS), and her
parental rights were terminated solely based on conflicting
testimony as to whether she should have more time to terminate
her "on and off relationship" with Father, who is abusive; and
the September 30, 2020 Permanent Plan (Permanent Plan) is not in
the Children's best interests as it has a goal of adoption by
paternal grandparents (Paternal Grandparents), despite evidence
that Father now resides with Paternal Grandparents.
For the reasons discussed below, we vacate the
Termination Order and remand to the Family Court for further
proceedings.
I. Applicable Standards
In addressing whether to terminate parental rights, the
Family Court applies the standards set forth in Hawai#i Revised
Statutes (HRS) § 587A-33 (2018), which provides in relevant part:
(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;
(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
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(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; and
(4) The child consents to the permanent plan if the child is at
least fourteen years old, unless the court consults with the
child in camera and finds that it is in the best interest of
the child to proceed without the child's consent.
(b) If the court determines that the criteria set forth in
subsection (a) are established by clear and convincing
evidence and the goal of the permanent plan is for the child
to be adopted or remain in permanent custody, the court
shall order:
(1) That the child's parent's parental rights be terminated;
(2) Termination of the existing service plan and revocation of
the prior award of foster custody;
(3) That permanent custody of the child be awarded to an
appropriate authorized agency;
(4) An appropriate permanent plan; and
(5) The entry of any other orders the court deems to be in
the best interests of the child, including restricting
or excluding unnecessary parties from participating in
adoption or other subsequent proceedings.
. . . .
(h) If the court determines that the criteria set forth in
subsection (a) are not established by clear and convincing
evidence, the court shall order:
(1) The preparation of a plan to achieve permanency for
the child;
(2) The entry of any orders that the court deems to be in
the best interests of the child;
(3) A periodic review hearing to be held within six months
after the date of the last permanency hearing; and
(4) A permanency hearing to be held within twelve months
of the date of the last permanency hearing.
(Emphases added).
"Clear and convincing" evidence is defined as
an intermediate standard of proof greater than a
preponderance of the evidence, but less than proof
beyond a reasonable doubt required in criminal cases.
It is that degree of proof which will produce in the
mind of the trier of fact a firm belief or conviction
as to the allegations sought to be established, and
requires the existence of a fact be highly probable.
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Iddings v. Mee-Lee, 82 Hawai#i 1, 13, 919 P.2d 263, 275 (1996).
[T]he family court's determinations . . . with
respect to (1) whether a child's parent is willing and
able to provide a safe family home for the child and
(2) whether it is reasonably foreseeable that a
child's parent will become willing and able to provide
a safe family home within a reasonable period of time
present mixed questions of law and fact; thus,
inasmuch as the family court's determinations in this
regard are dependant upon the facts and circumstances
of each case, they are reviewed on appeal under the
clearly erroneous standard. Likewise, the family
court's determination of what is or is not in a
child's best interests is reviewed on appeal for clear
error.
Moreover, the family court is given much leeway
in its examination of the reports concerning a child's
care, custody, and welfare, and its conclusions in
this regard, if supported by the record and not
clearly erroneous, must stand on appeal.
In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001)
(citations, quotation marks, and brackets omitted).
The family court's FOFs are reviewed on appeal
under the clearly erroneous standard. A FOF is
clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2)
despite substantial evidence in support of the
finding, the appellate court is nonetheless left with
a definite and firm conviction that a mistake has been
made. Substantial evidence is credible evidence which
is of sufficient quality and probative value to enable
a person of reasonable caution to support a
conclusion.
Id. (citations, quotation marks, and ellipsis omitted).
II. Background
The Family Court made a number of findings, only some
of which Mother challenges in this appeal. To the extent Mother
does not challenge findings by the Family Court, we are bound by
those findings. Bremer v. Weeks, 104 Hawai#i 43, 63, 85 P.3d
150, 170 (2004); Okada Trucking Co., Ltd. v. Bd. of Water Supply,
97 Hawai#i 450, 458, 40 P.3d 73, 81 (2002) ("[f]indings of fact .
. . that are not challenged on appeal are binding on the
appellate court.").
To provide context for Mother's appeal, we set out most
of the Family Court's findings and conclusions in its Termination
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Order, filed on December 8, 2020, and we bold the items
challenged by Mother in this appeal.
A The child/ren's mother, legal father, adjudicated,
presumed, or concerned natural father, as defined under HRS
Chapter 578, is/are not presently willing and able to
provide the child/ren with a safe family home, even with the
assistance of a service plan;
B It is not reasonably foreseeable that the child/ren's
mother, legal father, adjudicated, presumed or concerned
natural father, as defined under HRS Chapter 578, will
become willing and able to provide the child/ren with a safe
family home, within a reasonable period of time;
C Despite the reasonable efforts made by the Department
of Human Services to have the parents resolve their
substance abuse and domestic violence issues, parents have
failed to do so;
D The [Father] has not appeared in court nor has he
engaged in a service plan, he has been defaulted for his
failure to appear;
E The [Mother] had made some progress in demonstrating
that she could be a protective parent when she temporarily
ended her relationship with [Father] and sought a protective
order against him;
F Although Mother recognized that her relationship with
father was toxic and the domestic violence the children
experienced traumatized them, she made the decision to set
aside any temporary retaining orders and engaged in an "on-
again –- off-again" relationship with father;
G On November 7, 2018, [RK, then 2 years, 7 months old]
and [KK, then 1 year, seven months old] were found alone, in
the neighbors yard and the police were called, Mother
arrived while the police were investigating and refused to
divulge the location of her older three children, [RK] and
[KK] were removed from her care;
H The older three children, [IK], [JK] and [SK] were
located later in the day on November 7, 2018, in the care of
[Paternal Grandparents], protective custody was taken and
they remained with [Paternal Grandparents] as Resource
Caregiver/Grandparents;
I In the October 2019 Ohana Conference, Father committed
to working with the DHS on the Family Service Plan;
J In October 2019; [KK] had a near drowning incident
while on a visit with Mother to the beach, he was evacuated
to Kapiolani Children's Hospital for treatment and care;
K Mother and Father both went to Kapiolani Children's
Hospital to be with him as he was being treated, a domestic
violence incident between Mother and Father occurred at
Hospital and he had to be forcibly removed;
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L On October 14, 2019, Father met with DHS SW Karen
Morrison and discussed the FSP, and he was referred for a
Substance Abuse Assessment and random Urinalysis testing, he
failed to participate in both;
M Mother completed Substance Abuse Treatment as required
by the Family Service Plan;
N Mother had a laboratory confirmed test for
Methamphetamines on February 6, 2020 at 28 ng/ml, the cutoff
limit is 25 ng/ml;
O Mother tested presumptive positive for
Methamphetamines on February 18, 2020, and the result was
confirmed by laboratory testing at 32 ng/ml on February 21,
2020, the cutoff limit is 25 ng/ml;
P Mother tested presumptive positive for
Methamphetamines on February 24,2020;
Q Mother had allowed Father to stay with her at the
apartment she shared with her Mother, but lost her housing
in February 2020;
R After losing her housing in February 2020, Mother and
Father began living out of their car and camping together
for a month;
S On July 30, 2020, Mother testified that she and Father
fought on March 9, 2020, and she left him and entered the
family violence shelter at the YWCA and remained for 45
days;
T The March 24, 2020, Safe Family Home Report of SW
Karen Morrison states that Mother and Father have made
attempts to reconcile as a couple, and that this was
concerning because Father had not engaged in substance abuse
or domestic violence treatment;
U Mother and Father would frequently argue, and end up
in a physical altercation, and afterward Mother would meet
with SW Morrison and state that she "is really done this
time(,)" and after several weeks passed Mother and Father
would reconcile their relationship;
V Throughout the timeline of this case, [Father] and
[Mother] have had a periodic on and off romantic
relationship;
W Parents have a long history of domestic violence
issues, and Mother acknowledges that the children have been
traumatized by witnessing the domestic violence;
X Mother has failed to consistently protect her children
from exposure to their parents domestic violence, and has
failed [sic] prioritize the need to protect her children
over maintaining her romantic relationship with Father;
Y Mother went to live at the YWCA Family Violence
Shelter, and applied for a Temporary Restraining Order
against Father on April 15, 2020;
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Z Mother left the YWCA Shelter and moved into KEO
transitional housing on April 27, 2020 and has a one year
lease;
AA On June 4, 2020, the DHS SW and GAL met with Mother
regarding the way the TRO demonstrated her protectiveness,
and that she needed to be fully compliant with the TRO and
Mother agreed to comply with the TRO and other protective
measures;
BB On June 26, 2020, Mother filed a motion to withdraw
the TRO against Father, she dropped the TRO without
consulting with her therapist, the DHS and the GAL;
CC Mother testified on July 30, 2020, that she dropped
the TRO against father because it was not necessary, because
she had not spoken to him since March 2020, and also because
she was also frustrated with the Court process of getting
him served with the TRO;
DD Mother's [sic] testified that she struggles with an
addiction to Father, and that in therapy she was working on
her codependent choices, and that she was working on
herself, but had not discussed with therapist why she
repeatedly returned to Father;
EE Mother testified on July 30, 2020, that she was not in
a relationship with Father, and therefore their domestic
violence issues had no current effect on the children ;
FF Mother further testified on July 30, 2020, that she
could not imagine a relationship with Father and that she
was on her own path working and doing therapy, and that she
was not going to let him on her path;
GG On September 24, 2020, Mother admitted under cross
examination that she and Father had engaged in sexual
relations in August 2020, inside the Resource Caregivers
home, and were caught in [sic] act in the children's bedroom
when the Resource Mother unexpectedly returned home;
HH Closing argument of Mother was filed on September 29,
2020;
II Closing argument of the DHS was filed September 30,
2020;
JJ Mother's Motion to reopen trial was filed on October
7, 2020;
KK Mother's Exhibit H "TRO in FCDA 20-1-0188, granted by
the Court and filed on October 7, 2020" was received into
evidence by the Court on October 15, 2020;
LL Mother and Father agreed to meet on October 5, 2020,
and engaged in sexual relation in a car parked in the yard
of the resource home, while four of the children were asleep
inside the house;
MM Afer having sex, they argued about Father's drug use
and a physical fight, which resulted in yelling and
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screaming and the resource caregivers waking up and coming
outside to confront the couple, Father ran away and Mother
called the police;
NN The Court takes judicial notice of the records and
files in FCDA 20-1-0188 [Mother] v.[Father];
OO Supplemental Closing argument was filed on October 19,
2020[;]
PP On November 24, 2020, the Court circulated via email a
memorandum to counsels with the Decision and Order of the
Court Terminating the Parental Rights of [Mother] and
[Father];
QQ On November 30, 2020, Mother filed her notice of
appeal in the Intermediate Court of Appeals, in CAAP-20-
0000737;
RR The proposed permanent plan/s are in the best interest
of the child/ren;
SS The child(ren)'s date of entry into foster custody was
Jan. 24, 2019;
TT The minor/s has/have been in out-of-home care for over
twenty-three (23) of the last 22 (twenty-two) months [sic];
UU Under the circumstances that are presented in this
case, DHS has made reasonable efforts to finalize the
permanency plan which in this case is [ ] reunification [X]
permanent out of home placement;
VV Each term, condition and consequence of the [ ] family
service plan [X] permanent plan/s # dated September 30, 2020
[ ] as modified, has been explained to and is understood by
each party present at the hearing;
WW The parties have not made progress toward resolving
the problems that necessitated placement;
XX The appropriate permanency goal for the child(ren) is:
[ ] reunification [X] permanent out of home placement ;
YY The projected date for [ ] reunification [X] adoption
[ ] legal guardianship [ ] permanent custody is Dec. 2020;
ZZ The child(ren) have been consulted, in an age of
appropriate manner, about the proposed permanency and/or
transition goal:
AAA DHS has made reasonable efforts to:
(A) Place siblings in foster care with the same
resource family, adoptive placement, or legal
guardians, and
(B) Provide for frequent visitation or other on-
going interactions with siblings who are not
living in the same household;
BBB The child(ren)'s placement is safe and appropriate ;
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. . .
CCC The parents have failed to complete the goals and
objectives of the family service plan within a reasonable
amount of time;
DDD The current resource family was given actual notice of
this hearing [ ] by written notice [X] when they were
present at the last court hearing;
. . .
EEE The matter came on for initial termination of parental
rights (tpr) hearing on July 2, 2020 (with State's Exhibit/s
#24-26 received by the Court) and was further continued to
July 30, 2020;
FFF The matter came on for continued termination of
parental rights (tpr) hearing on July 30, 2020 and was
further continued to Sept. 24, 2020 with written closing
arguments due on Oct. 2, 2020 followed by rebuttal/s due on
Oct. 14, 2020 and closing supplemental due on Oct. 19,
2020[.]
(Emphases added).
Based on these findings and conclusions, the Family
Court, inter alia: terminated the parental rights of Mother and
Father; awarded DHS permanent custody under HRS § 587A-33(f) with
the authority to place the Children for adoption or guardianship
or long-term foster custody; made Paternal Grandparents parties
to the proceeding and appointed them foster parents; and stated
that each term of the September 30, 2020 Permanent Plan was
"hereby ordered by the Court," and made them a part of the
Termination Order.
III. Discussion
A. FOFs C, EE and WW
As set out in unchallenged FOF SS, the Children entered
foster custody on January 24, 2019. Over the course of almost
two years, and after a number of hearings and multiple days of
trial on the petition to terminate parental rights, the Family
Court issued its initial written decision terminating Mother and
Father's parental rights on November 24, 2020. The Family Court
thereafter issued the Termination Order on December 8, 2020. We
first address Mother's challenges to FOFs C, EE and WW.
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FOF C provides as follows: "Despite the reasonable
efforts made by [DHS] to have the parents resolve their substance
abuse and domestic violence issues, parents have failed to do
so[.]" Mother contends FOF C is clearly erroneous because she
repeatedly tested negative for drugs and was assessed to have
made "incredible progress" with respect to her substance abuse
issues.
DHS Social Worker Lisa Cook (Cook) testified at the
July 2, 2020 trial hearing that Mother "addressed the substance
abuse issues and made incredible progress in that area," and
DHS's October 1, 2020 Safe Family Home Report indicated that she
had tested clean for substances since March 2020. However,
Mother tested positive for substances several times in February
2020 after a year of services, and despite having completed her
substance abuse treatment at that time. Indeed, Mother's
psychological evaluation indicated she would be vulnerable to
substance abuse relapse if she reconnects with Father while he is
still actively using substances, she acknowledged she tested
positive for substances when she temporarily resumed her off-and-
on relationship with Father in February 2020, and she admitted at
the September 24, 2020 continued trial that she and Father had
again resumed a romantic relationship. Because Mother's
substance abuse issues reemerged while she was in a relationship
with Father, despite completing services, the Family Court
reasonably could find that she cannot fully resolve her substance
abuse issues until she fully terminates her relationship with
Father. Thus, because Mother re-engaged her relationship with
Father several times during the course of the proceeding,
including while trial was ongoing, substantial evidence supports
the Family Court's finding that her substance abuse issues were
not resolved at that time.
FOF EE provides as follows: "Mother testified on July
30, 2020, that she was not in a relationship with Father, and
therefore, their domestic violence issues had no current effect
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on the children[.]" Mother argues that FOF EE is clearly
erroneous as it implies Mother testified her history of domestic
violence with Father had no current effect on the Children. We
disagree. FOF EE accurately describes portions of Mother's
testimony. However, we recognize that Mother also acknowledged
at trial that the Children were still dealing with trauma from
witnessing past domestic violence incidents. Moreover, the
Family Court found in unchallenged FOF W that "Parents have a
long history of domestic violence issues, and Mother acknowledges
that the children have been traumatized by witnessing the
domestic violence[.]" Given the record, FOF EE is not clearly
erroneous.
FOF WW provides as follows: "The parties have not made
progress toward resolving the problems that necessitated
placement[.]" Mother argues that FOF WW is clearly erroneous as
pertaining to her because the record is "replete with
indications" that she progressed with respect to the problems
necessitating placement. DHS argues that Mother "lost" any of
her progress when she lost the ability to have unsupervised
visits with the Children due to her problematic romantic
relationship with Father and after an accident where the youngest
child, KK, nearly drowned while in her care.
Mother's argument has some merit. According to DHS's
November 13, 2018 Petition for Temporary Foster Custody
(Petition), Mother's problems that necessitated placement are
that: the Children are vulnerable due to their young age; Mother
failed to provide them with clothing and adult supervision in a
timely manner; Mother has "a history of unresolved substance
abuse issues"; and her "current impairment due to substance abuse
[was] affecting her ability to supervise, protect or care" for
the Children. DHS required Mother to, inter alia, participate in
substance abuse assessment and treatment, ongoing random drug
testing, psychological evaluation and treatment, to cooperate and
keep regular contact with a DHS social worker, work in
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partnership with DHS to ensure the Children's needs are met,
engage in weekly visits with the Children, participate in
domestic violence groups, and attend parenting education classes.
DHS Social Worker Karen Morrison (Morrison) testified
at trial on July 2, 2020, that: Mother completed all services
ordered, and she believes Mother can meet the Children's basic
needs. Similarly, Cook testified at trial that same day that
Mother "addressed the substance abuse issues and made incredible
progress in that area and began to make progress in addressing
the issues of being protective of her children from witnessing
domestic violence." Thus, it appears Mother has made some
progress during the case.
However, the record also indicates that Mother's
relationship with Father is a fundamental part of the problem
that necessitated placement of the Children and that has
prevented Mother from providing a safe family home, and those
circumstances do not appear to have changed or progressed.
Specifically, the record reflects that: Mother met Father when
she was 14 years old and he was 20 years old, and as of 2019,
they had been in a relationship for fifteen years; Father was the
person who first introduced Mother to methamphetamines; their
relationship involved domestic abuse, infidelity, mistrust, and
drugs; Mother's psychological evaluation indicated she would be
vulnerable to drug relapse if she reconnected with Father while
he is using; Mother did in fact test positive for substances when
she temporarily resumed a relationship with Father, despite
having fully completed her substance abuse treatment; and Father
continues to have substance abuse issues. Father also has not
altered his pattern of domestic abuse, and the eldest child has
expressed concerns that Mother and Father will inevitably reunite
and expose the Children to domestic violence again. There is
ample evidence in the record that Mother's continued on and off
relationship with Father significantly undermines her ability to
provide a safe family home for the Children.
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We conclude that FOF WW is clearly erroneous in part,
to the extent that it fails to recognize Mother's past progress
in addressing her personal substance abuse and neglect issues.
However, FOF WW is not clearly erroneous in that there is
substantial evidence that Mother has been consistently unable to
break free of her relationship with Father, which has inevitably
resulted in substance use and physical abuse, and thus, Mother
has not progressed in addressing the root cause of her inability
to provide a safe family home for the Children.
B. Mixed Conclusions and Findings RR, XX, and BBB
Mother next contends the Family Court abused its
discretion in entering Mixed Conclusions and Findings RR, XX, and
BBB, which respectively provide as follows: "RR The proposed
permanent plan/s are in the best interests of the child/ren[,]"
"XX the appropriate permanency goal for the child(ren) is . . .
permanent out of home placement[,]" and "BBB The child(ren)'s
placement is safe and appropriate[.]"
The appellate court reviews mixed questions of law and
fact under the clearly erroneous standard because the Family
Court's conclusions are dependent upon the facts and
circumstances of each individual case. In re Doe, 95 Hawai#i at
190, 20 P.3d at 623.
Mother contends the following factors contradict Mixed
Conclusions and Findings RR, XX and BBB, and weigh in favor of
granting her further reunification efforts3: there is no history
3
Mother cites Interest of AC, No. CAAP-XX-XXXXXXX, 2019 WL 5966938, at
*2 (App. Nov. 13, 2019) (Order Dismissing Appeal for Lack of Jurisdiction) to
argue that HRS § 571-46 provides the standard for determining the best
interests of the child in a Child Protective Act case. However, HRS § 571-46
applies in proceedings involving a dispute as to the custody of a minor child.
AA v. BB, 139 Hawai#i 102, 106, 384 P.3d 878, 882 (2016). In Interest of AC,
this court considered HRS § 571-46 in pari materia with HRS Chapter 587A to
conclude there is no legal preference anywhere in Hawai #i law for in-state
placement over out-of-state placement when considering a child's best
interest. 2019 WL 5966938, at *2. This is because "[l]aws in pari materia,
or upon the same subject matter, shall be construed with reference to each
other. What is clear in one statute may be called in aid to explain what is
doubtful in another." HRS § 1-16 (2009). However, nothing in Interest of AC
(continued...)
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of sexual or physical abuse; she resolved her issues of neglect;
the Children are closely bonded with her; she consistently and
actively participated in the Children's caregiving throughout the
case; she can meet the Children's basic needs and provide for
their emotional needs; and though her off-and-on relationship
with Father is concerning, permanent placement with Paternal
Grandparents is not safe or appropriate given her uncontroverted
testimony that Father resides in Paternal Grandparents' home,
where the Children are placed (Foster Home), and he has regular
contact with the Children there. Mother further contends the
record shows she is "at least as 'responsible and competent'" as
Paternal Grandparents in caring for the Children, and thus, the
best interests of the Children are "ambiguous at best," but the
relevant considerations "tip the scales" in favor of placement
with her or some alternative arrangement given Mother's
"fundamental liberty interest in the care, custody, and
management of [her] children."
DHS argues that: (1) the Permanent Plan is in the
Children's best interests because the Children had lived at the
Foster Home for nineteen months by the time of the October 15,
2020 reopened trial hearing; at the time of initial placement,
the three eldest Children were already staying with Paternal
Grandparents pursuant to Mother's own arrangement with them; and
the eldest child desires to remain with Paternal Grandparents;
(2) that the appropriate permanency goal for the Children is
permanent out of home placement because Mother admitted to
resuming her romantic relationship with Father, and Mother fails
to appreciate the likelihood that the Children would be exposed
to violence if Parents met up in the same home where the Children
are placed; and (3) that Mother waived any challenges to the
3
(...continued)
indicates that HRS § 571-46 provides the standard for a child's best interests
in a termination of parental rights hearing under HRS § 587A-33(a)(3). Thus,
while we address Mother's arguments, we decline to accept HRS § 571-46 as
providing the governing standard.
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safety and appropriateness of the Foster Home by not objecting to
the Family Court's numerous findings that it is safe and
appropriate.
Regarding DHS's waiver argument, "[l]egal issues not
raised in the trial court are ordinarily deemed waived on
appeal." Ass'n of Apt. Owners of Wailea Elua v. Wailea Resort
Co., 100 Hawai#i 97, 107, 58 P.3d 608, 618 (2002). Citing
Hawai#i Family Court Rules (HFCR) Rule 464, Mother contends she
had no prior reason to object to the safety of the Foster Home,
as she did not know Father lived there until the time of trial,
but she thereafter raised the issue in her closing argument.
Mother is correct in that her testimony at the October 15, 2020
reopened trial is the first and only evidence that Father resides
at the Foster Home, and she did raise the issue in her October
19, 2020 Supplemental Closing Argument. Thus, the objection is
not waived.
As to whether the record supports Mixed Conclusion and
Finding BBB (that the Foster Home is safe and appropriate),
Morrison testified at the July 2, 2020 trial hearing that she
believed the Foster Home was safe based on her prior monthly
meetings with Paternal Grandparents at the Foster Home and that
she was not concerned for the safety of the Children there or
that Paternal Grandparents would not be protective if Father were
to come around the Children and do "anything inappropriate or
dangerous." Thus, based on the evidence in July 2020, the Family
4
HFCR Rule 46 provides:
Formal exceptions to rulings or orders of court
are unnecessary; but for all purposes for which an
exception has heretofore been necessary it is
sufficient that a party, at the time the ruling or
order of the court is made or sought, makes known to
the court the action that the party desires the court
to take or the party's objection to the action of the
court and grounds therefor; and, if a party has no
opportunity to object to a ruling or order at the time
it is made, the absence of an objection does not
thereafter prejudice the party.
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Court could find that, absent any changes in the Foster Home, it
remained safe based on Morrison's prior in-person assessments5
and her belief that Paternal Grandparents could keep the Children
safe from Father.
However, given Mother's uncontested testimony three
months later at the reopened trial on October 15, 2020, that
Father was living at the Foster Home, his residing there raises
new safety concerns that should have been addressed but were not.
Notably, neither Morrison nor Cook opined whether Paternal
Grandparents could keep the Children safe if Father lived in the
Foster Home with them, especially given the record of Father's
continued use of substances, or whether Paternal Grandparents
could keep the Children from witnessing domestic violence
incidents if Father and Mother were together at the Foster Home
in the Children's presence. Indeed, the primary reason for
reopening the trial in October 2020 was to allow Mother to
testify about a Temporary Restraining Order (TRO) she filed
against Father on October 7, 2020, due to a physical abuse
incident between Father and Mother at the Foster Home on October
5, 2020. DHS expressly notes that Mother and Father being
together in the same place raises safety concerns, arguing in
this appeal that "Mother failed to appreciate the likelihood that
the Children would be exposed to a violent incident if Parents
met up in the same home where the [Children] were placed."
Thus, if DHS required Mother to maintain a TRO or some other
protective measure to keep Father away so as to avoid violent
incidents in the Children's presence, Father's residing at the
Foster Home should raise significant concerns about the well
being of the Children and whether the Foster Home can be deemed
safe.
5
Mother also argues that Paternal Grandparents' home is not safe or
appropriate because it is the same home where the abusive Father was raised.
This argument is not only speculative, but it is contradicted by Morrison's
testimony.
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No party appears to have requested, and the Family
Court did not make any findings, about Mother's uncontroverted
testimony about Father living at the Foster Home. In short,
there appears to be nothing to indicate whether this aspect of
the case –- Father's residing at the Foster Home –- has been
considered or addressed by the Family Court. If Father does
reside at the Foster Home, the absence of evidence of protective
measures against him and his substance use, or against domestic
violence incidents between Mother and Father, and the lack of any
details about his residing there given the record in this case,
weighs heavily against a finding that the placement is safe and
appropriate. Accordingly, on this record, we conclude that the
current record does not contain substantial evidence to support
Mixed Conclusion and Finding BBB, and therefore, the Family Court
clearly erred as to BBB.
Mixed Conclusion and Finding RR (that the proposed
permanent plan is in the Children's best interests) concerns the
third element of HRS § 587A-33(a). The Family Court presumes it
is in a child's best interests to be "promptly and permanently
placed with responsible and competent substitute parents and
family in a safe and secure home." See HRS § 587A-33(a)(3)(A)
(emphasis added). While the Permanent Plan does not explicitly
state that the Children are to be adopted by the Paternal
Grandparents, it appears this is the intended goal, as the
Permanent Plan indicates, inter alia: its goal is placement for
adoption by December 2020; the Paternal Grandparents are willing
to adopt; and DHS "continues to discuss adoption with" the
Paternal Grandparents. It also does not identify any other
presumptive adoptive parent. Thus, the record indicates the
Permanent Plan's goal is adoption by the Paternal Grandparents.
Given the record, the Family Court must address whether Father is
residing at Paternal Grandparent's house, i.e., the Foster Home,
and, if so, the consequences of that affecting whether such
placement is safe for the Children and whether it is in the
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Children's best interests to be placed there. Given Mother's
uncontested testimony, Father was living at Paternal
Grandparent's house in October 2020, and the evidence in the
record shows that Father continues to use substances and has had
multiple physical altercations with Mother. Accordingly, given
the state of the record, there is no clear and convincing
evidence that the Permanent Plan is in the Children's best
interests. Thus, the Family Court clearly erred in Mixed
Conclusion and Finding RR.
As to Mixed Conclusion and Finding XX (that the
appropriate permanency goal for the Children is permanent out-of-
home placement), we note that by January 2020, DHS was
statutorily required to move to terminate parental rights based
on the amount of time the Children had been in foster care. See
HRS § 587A-31(g) (2018). At trial on July 2, 2020, both Cook and
Morrison testified that Mother could not presently provide a safe
family home, and they were not confident she should have more
time to be willing and able to do so given the amount of time
remaining and her unresolved off-and-on relationship with Father.
As neither of Mother's social workers testified that she was then
on track to provide a safe family home, substantial evidence
supports the permanency goal of permanent out-of-home placement.
Accordingly, the Family Court did not clearly err in Mixed
Conclusion and Finding XX.
As to Mother's remaining arguments, while she is
correct in that: there is no history of sexual or physical abuse,
she had addressed her issue of neglect, the Children are bonded
with her, she consistently and actively participated in the
Children's caregiving, and she can meet and provide for the
Children's basic and emotional needs, the record nonetheless
reveals a history of domestic abuse and tendency to return to
substance abuse through her relationship with Father, which,
until fully resolved, remains a significant safety issue for the
Children. As to her argument that the scales "tip" in favor of
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placement with her due to her "fundamental liberty interest in
the care, custody, and management of [her] children," Mother
provides no authority that this interest is determinative, under
the circumstances of this case, with respect to the proper
placement for purposes of a permanent plan. Thus, her arguments
are unavailing.
C. The Family Court Did Not Clearly Err in
Concluding Mother Would Not Be Able to
Provide a Safe Family Home in a Reasonable Time
Mother argues there is no clear and convincing evidence
she was not presently, or in the reasonably foreseeable future,
willing and able to provide a safe family home, even with the
assistance of a service plan, because: DHS's own experts conceded
that more time might be appropriate; Mother complied with all
service plan requirements; and Mother only reunited with Father
in good faith reliance on his representations that he would
participate in services.
We acknowledge that at the July 2, 2020 trial, Cook
testified Mother made incredible progress in addressing her
safety issues, and Morrison testified that Mother had completed
her services and tasks by February 2020. However, due to
remaining domestic violence issues, Morrison told Mother in or
about January 2020 that she must file a TRO against Father. In
light of the fact that Mother withdrew her TRO against Father by
the time of trial and re-engaged in a relationship with him,
neither Cook nor Morrison were confident Mother could demonstrate
her willingness and ability to provide a safe family home in a
reasonable time given the amount of time the Children had already
been in foster care.
We do not overlook Mother's progress in addressing her
safety issues and her filing of a new TRO in October 2020, which
demonstrate Mother made efforts to address the safety issues in
the family. However, "[i]t is well-settled that an appellate
court will not pass upon issues dependent upon the credibility of
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witnesses and the weight of the evidence; this is the province of
the trier of fact." In re Doe, 95 Hawai#i at 190, 20 P.3d at
623. (Citation omitted). The Family Court need not accept
Mother's representation that she has now permanently terminated
her relationship with Father, especially considering that she re-
engaged with Father between trial dates; she testified that she
is "addicted" to Father; Father is her only significant romantic
partner and is the Children's biological father; and despite
being instructed to maintain a TRO for the duration of the case,
she withdrew a prior TRO and re-engaged with Father based on his
representations that he would participate in services, which he
ultimately did not. The record indicates that Mother is unable
to prioritize the Children's needs and safety above her own
desire to reunify with Father, which has long been identified as
the significant issue that Mother has had to address in this
case.
Accordingly, the Family Court did not clearly err in
concluding that Mother would not be willing and able to provide a
safe family home for the Children within a reasonable time.
D. The Termination Order
Mother's fourth point of error contends the Family
Court abused its discretion in terminating her parental rights.
Given that the record lacks clear and convincing evidence that
the Permanent Plan is in the Children's best interests, not all
of the requirements of HRS § 587A-33(a) are met. In In re R
Children, 145 Hawai#i 477, 482-84, 454 P.3d 418, 423-25 (2019),
the Hawai#i Supreme Court held that a father's parental rights
could not be terminated where all of the requirements of HRS
§ 587A-33(a) were not met. The supreme court stated that HRS
§ 587A-33:
provides that the family court shall terminate a parent's
parental rights if it finds that: (1) the parent is not able
to provide a safe family home for the child now or within a
reasonable period of time (HRS §§ 587A-33(a)(1)-(2)); (2)
the proposed permanent plan is in the best interests of the
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child (HRS § 587A-33(a)(3)); and (3) the child consents to
the permanent plan if the child is at least fourteen years
old (HRS § 587A-33(a)(4)). Pursuant to section (h) of the
CPA Provision, if the family court does not find that all of
these requirements are met, the family court shall take
further steps to establish permanency for the child. HRS
§ 587A-33(h). However, nothing in [HRS § 587A-33] indicates
that the family court can terminate a parent's parental
rights if fewer than all of the above requirements are met.
. . . .
The family court's order terminating Father's parental
rights without finding that the proposed permanent plan was
in KK's best interests contravenes the plain language of the
[HRS § 587A-33]. The family court found by clear and
convincing evidence that the requirements set forth in HRS
§§ 587A-33(a)(1) and (a)(2) were met, but explicitly
determined that the requirement of HRS § 587A-33(a)(3) was
not met. Because not all of the requirements set forth in
the [HRS § 587A-33] were met, the statute did not provide
the family court authority to terminate Father's parental
rights. See HRS § 587A-33(h).
Id. at 483-84, 454 P.3d at 424-25 (Emphases added)(footnote
omitted).
Here, because we conclude above that there was no clear
and convincing evidence to support Mixed Conclusion and Finding
RR -- i.e., that the proposed permanent plan is in the Children's
best interests -- not all the requirements of HRS § 587A-33 have
been met in this case. Thus, pursuant to In re R Children, we
must also conclude the Family Court erred in terminating Mother's
parental rights.
IV. Conclusion
Based on the above, the December 8, 2020 Decision and
Order Terminating the Parental Rights of [Father] and [Mother]
and Awarding Permanent Custody is vacated. We remand the case to
the Family Court for further proceedings and findings, including
to address: whether Father resides with Paternal Grandparents at
the Foster Home, and if so, whether the Foster Home is safe;
whether permanent placement at the Foster Home is in the
Children's best interests; and whether Mother's parental rights
should be terminated. The Family Court may take further action
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as it deems necessary, including but not limited to addressing
any changed circumstances in the case.
DATED: Honolulu, Hawai#i, September 27, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Matthew Mannisto,
for Respondent-Appellant. /s/ Katherine G. Leonard
Associate Judge
Russell K. Goo,
Julio C. Herrera, /s/ Karen T. Nakasone
Ian T. Tsuda, Associate Judge
Patrick A. Pascual,
for Petitioner-Appellee.
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