In re: SK Children ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAR-2022
07:51 AM
Dkt. 383 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF SK CHILDREN
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 18-00077)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
Appellant Mother (Mother), self-represented, appeals
from the Order Terminating Parental Rights, filed on March 23,
2021, in the Family Court of the First Circuit (Family Court).1
Mother contends on appeal: (1) there are no grounds to
terminate her parental rights in violation of her due process
rights; (2) she was denied visits after termination of her
parental rights; (3) jurisdiction was not established at the
commencement of the case and the petition for temporary foster
custody was based on misleading information; (4) she was not
properly served until April 20, 2018, which violated her right to
due process; (5) the statute of limitations expired because the
order terminating her parental rights was made past the two year
mark and the motion to terminate parental rights was made in the
24th month of foster care; (6) Petitioner-Appellee State of
Hawai#i, Department of Human Services (DHS), abused its
1
The Honorable Jessi L.K. Hall presided.
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discretion by "planning, carrying out and succeeding in
defrauding the government, by using the [] family as eligible
interest in the title iv incentive program[;]" (7) a felony was
committed by DHS personnel by manipulating the court with
misleading information of reports of abuse by Mother and
arbitrarily detaining her for three years; and (8) default
judgment should not be entered unless there is clear and
convincing evidence to prove child abuse.
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:
Mother does not challenge any of the Family Court's
findings of fact (FOF) and unchallenged findings are binding on
this court. In re Doe, 99 Hawai#i 522, 538, 57 P.3d 447, 463
(2002).
(1) The court construes Mother's first point of error
as a claim that there was no clear and convincing evidence that
Mother was not presently willing and able to provide a safe
family home, even with the assistance of a service plan, and 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 the children first entered foster
custody, pursuant to Hawaii Revised Statutes (HRS) § 587A-
33(a)(1) and (2) (2018).
There was clear and convincing evidence Mother was not
presently willing and able to provide a safe family home, even
with the assistance of a service plan. Mother's current
involvement with DHS was due to safety issues with illicit drug
use and domestic violence in front of the children. FOF 76.
Mother's main safety concerns involve mental instability, lack of
demonstration of sobriety, family conflict, and threatening
behavior towards DHS. FOF 76. Mother's failure to recognize the
negative impact of her actions on others has become a serious
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ongoing problem. FOF 76. Mother's recommended services were
participation in a psychological evaluation, substance abuse
assessment, random urinalysis, parenting education and domestic
violence programs, and individual therapy. FOF 77. On April 18,
August 19, and October 11, 2019, Mother failed to participate in
a drug urinalysis, which are presumed to be positive. FOF 83.
Mother stated that she tested positive for barbiturates and
opioids for at least four months in 2019 while on HOPE probation.
FOF 84. Despite requests by DHS, Mother has not taken a drug
test since February 2020. FOF 88. Thus, Mother failed to
participate in random drug urinalyses and demonstrate consistent
and prolonged sobriety, continued to deny having any problems
with substance abuse, and has gone to great lengths to contest
and avoid substance abuse monitoring from the outset of the case.
FOF 87. Although Mother completed parenting and domestic
violence programs, she continued to be involved in relationships
that are dangerous and abusive. FOF 91. Erin Asato (Asato), a
DHS social worker, testified that the same month Mother was
discharged from a domestic violence program, she filed a
temporary restraining order on her boyfriend and informed DHS she
was involved with the police crime reduction unit. FOF 115d.
The Family Court found Asato to be a credible witness. FOF 113.
At the time of trial in March 2021, after DHS had provided Mother
with a service plan, she did not resolve the safety issues
initially identified by DHS nearly three years earlier in April
2018, which prevented Mother from providing a safe family home.
There was clear and convincing evidence 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 the children first entered foster custody. The
children first entered foster custody on June 1, 2018. FOF 66.
As noted above, trial on the Motion to Terminate Parental Rights
was conducted in March 2021, FOF 50, more than two years after
the children first entered foster custody. Asato testified
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Mother would not benefit from additional services and could not
provide a safe family home in the future. FOF 115e and 115f.
Dr. Cindy Ikeda (Dr. Ikeda), psychologist consultant for the
Child and Family Service Multidisciplinary Team, testified it
would not be beneficial for Mother to re-take parenting classes
because the issue is that she cannot apply what she learned when
she cannot admit her own shortcomings and Mother received the
maximum benefit from domestic violence services and further
participation will not make a difference. FOF 127e and 127f.
Dr. Ikeda also stated Mother could not provide a safe family home
in the future. FOF 127k. The Family Court found Dr. Ikeda to be
a credible witness. FOF 126. It was not reasonably foreseeable
Mother would become willing and able to provide a safe family
home within two years from the date the children first entered
foster custody because she had not done so after more than two
years and Mother would not be able to do so with further
services.
(2) Mother claims she was denied visitation after
termination of her parental rights. After termination of
parental rights, "[a] family member may be permitted visitation
with the child at the discretion of the permanent custodian. The
court may review the exercise of such discretion and may order
that a family member be permitted such visitation as is in the
best interests of the child." HRS § 587A-33(d). Mother does not
cite and this court cannot find where in the record Mother's
request for visitation after termination of parental rights was
denied by DHS, the permanent custodian, and that she asked the
Family Court to review DHS's denial of visitation after
termination of her parental rights. Even if the Family Court
denied such visitation, Mother provides no argument why it was
erroneous to deny her visitation after termination of her
parental rights. Therefore, the point of error is waived.
Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4) and
(7).
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(3) Mother's claim that the Family Court failed to
establish jurisdiction and that the petition for temporary foster
custody was based on misleading information is without merit.
Mother stipulated to the Family Court's jurisdiction,
adjudication of the petition for temporary foster custody, and
award of foster custody to DHS at a hearing on July 2, 2018. FOF
23. Mother agreed that there was a reason for DHS and the Family
Court to be involved with the family.
(4) Mother's due process rights were not violated when
she was served with a summons on April 20, 2018, despite the fact
a Petition for Temporary Foster Custody (Petition) was filed on
April 5, 2018.
HRS § 587A-26(a) (2018) requires the Family Court to
hold a hearing within two days, excluding Saturdays, Sundays, and
holidays, after the filing of a petition for temporary foster
custody. "After a petition has been filed, the court shall issue
a summons requiring the presence of the parents and other persons
to be parties to the proceeding except the child[.]" HRS § 587A-
13(a) (2018). "Service shall be completed no less than
twenty-four hours prior to the time set forth in the summons for
a temporary foster custody hearing[.]" HRS § 587A-13(e).
A hearing was held on April 9, 2018, within two days,
excluding Saturday and Sunday, of the April 5, 2018 filing of the
petition. The hearing on temporary foster custody was continued
to May 11, 2018, because neither parent had been served a
summons. On April 20, 2018, Mother was served with a copy of a
summons and certified copy of the Petition, Safe Family Home
Report, and Service Plan. FOF 19. On May 11, 2018, Mother
appeared with a court-appointed attorney for the temporary foster
custody hearing but Father was not yet served so the hearing was
continued to July 2, 2018. As noted above, Mother stipulated to
jurisdiction and adjudication of the temporary foster custody
petition on July 2, 2018. Father also stipulated to jurisdiction
and adjudication of the temporary foster custody petition on July
2, 2018. FOF 23.
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Although not raised as a specific point of error, but
related to Mother's claim of a due process violation regarding
the service of the Petition, this court requested additional
briefing by the parties to address Mother's right to court-
appointment counsel and the Family Court's effort to appoint
Mother counsel in this case.
Due process requires the Family Court to "appoint
counsel for indigent parents when DHS files a petition asserting
custody over a child." In re L.I., 149 Hawai#i 118, 122-23, 482
P.3d 1079, 1083-84 (2021). The failure to timely appoint counsel
is structural error which does not require proof the error was
harmful. Id. at 123, 482 P.3d 1084. In addition, discharging
counsel during the pendency of the proceeding prior to a decision
on a motion to terminate parental rights is a violation of due
process and also structural error which also does not require
proof the error was harmful. In re J.M., 150 Hawai#i 125, 143,
497 P.3d 140, 158 (App. 2021). Nonetheless, the right to counsel
may be voluntarily and intelligently waived based on the totality
of the circumstances. In the Interest of Doe, 77 Hawai#i 46, 49,
881 P.2d 533, 536 (1994) (citing Medeiros v. State, 63 Haw. 162,
163, 623 P.2d 86, 87 (1981)) (minor may waive right to counsel in
juvenile proceeding if done so voluntarily and intelligently).
Mother was timely appointed counsel when she made her
first appearance in the proceeding with court-appointed counsel.2
After several changes in court-appointed counsel at Mother's
request, on October 20, 2020, Mother indicated she would like to
represent herself. The Family Court questioned Mother about her
age, education, ability to understand English, whether she was
currently under the influence of any drugs or alcohol, if she was
receiving treatment for any mental illness or emotional
disability, and her prior experience in participating,
2
A parent's first appearance in the proceeding is not necessarily the
measure of timely appointment of counsel because a parent may want to retain
counsel or must establish indigency and accept court-appointed counsel,
neither of which is at issue in this case.
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testifying, and representing herself in court.3 See State v.
Phua, 135 Hawai#i 504, 513, 353 P.3d 1046, 1055 (2015) (the trial
court should first explore the facts and circumstances pertaining
to a defendant's level of comprehension such as age, education,
English language skills, mental capacity, employment background,
and prior experience with the criminal justice system, when a
defendant seeks to waive the right to counsel in a criminal
proceeding citing State v. Dickson, 4 Haw. App. 614, 619, 672
P.2d 1036, 1041 (1983)). The Family Court then informed Mother
that: if she did not understand anything to inform the court; the
proceeding involved the possibility of termination of parental
rights; the matter may be set for trial; DHS was required to
prove Mother was unwilling or unable to provide a safe family
home for her children and if DHS succeeded, her parental rights
would be terminated; Mother had the right to be represented by an
attorney; due to her financial circumstances Mother had been
provided an attorney; and if Mother represented herself the court
or judiciary employees cannot help her, and it would be presumed
she knew and would follow the rules of evidence, court rules, and
law. The Family Court also informed Mother she could retain her
own attorney. The Family Court also explained that because
Mother had no formal legal training, representing herself would
be difficult because the proceedings are often complicated and
legally technical, if she did not adequately represent herself
she could not later complain she did not have effective legal
representation, and recommended that Mother be represented by
counsel.
The Family Court inquired whether Mother had any
questions, to which she responded "No" and Mother affirmed she
still wished to waive her right to counsel and represent herself
and her decision was entirely voluntary. The Family Court made
3
As of September 25, 2020, DHS reported Mother was previously employed
but was currently not employed.
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an express finding that Mother voluntarily, intelligently, and
knowingly waived her right to be represented by an attorney.
The record demonstrates Mother was informed of the
disadvantages of self-representation, Phua, 135 Hawai#i at 515-
16, 353 P.3d at 1057-58,4 and she voluntarily, intelligently, and
knowingly waived her right to counsel under the totality of the
circumstances. Therefore, Mother's due process rights were not
violated.
(5) Contrary to Mother's claim, there is no statutory
time limitation for the Family Court to issue an order
terminating parental rights.
DHS must file a motion to terminate parental rights if,
at a periodic review hearing "the child has been in foster care
under the responsibility of the department for an aggregate of
fifteen out of the most recent twenty-two months from the date of
entry into foster care," or at a permanency hearing "the child
has been in foster care under the responsibility of the
department for a total of twelve consecutive months or an
aggregate of fifteen out of the most recent twenty-two months
from the date of entry into foster care," unless DHS "has
documented in the safe family home factors or other written
report submitted to the court a compelling reason why it is not
in the best interest of the child to file a motion" or "has not
provided to the family of the child, consistent with the time
period required in the service plan, such services as the
department deems necessary for the safe return of the child to
the family home." HRS §§ 587A-30(c) (2018) and 587A-31(g)
(2018). The children entered foster care on June 1, 2018. FOF
66. A Motion to Terminate Parental Rights was filed on June 17,
2020. FOF 28. Mother does not cite and this court cannot find
where in the record Mother objected to DHS not filing a motion to
terminate parental rights prior to June 17, 2020. Mother also
4
Warning a parent about the elements of an offense, the pleas and
defenses available, and the punishment which may be imposed, Phua, 135 Hawai#i
at 515, 353 P.3d at 1057, are not applicable to the proceedings in this case.
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provides no argument as to how a delay in filing a motion to
terminate parental rights affected her. Therefore, the point of
error is waived. HRAP Rule 28(b)(4) and (7).
(6) Mother claims DHS abused its discretion by
"planning, carrying out and succeeding in defrauding the
government, by using the [] family as eligible interest in the
title iv incentive program." It is unclear what Mother refers to
as an "eligible interest in the title iv incentive program."
Further, Mother does not cite and this court cannot find where in
the record Mother objected to DHS's actions based on an "eligible
interest in the title iv incentive program" and Mother does not
provide any argument regarding this alleged point of error.
Therefore, the point of error is waived. HRAP Rule 28(b)(4) and
(7).
(7) Mother asserts criminal conduct by others in this
proceeding, but she does not provide references to the record or
cogent arguments to support her claims. The Family Court found
the DHS witnesses to be credible witnesses. FOFs 113, 116, and
126. We conclude this point raised by Mother is without merit.
(8) The Family Court did not terminate Mother's
parental rights based on a default for failing to appear after
one day of trial. Mother was defaulted for failing to appear but
DHS continued to present witness testimony after her non-
appearance. In terminating Mother's parental rights, the Family
Court stated: "After full consideration of the record and
evidence, testimony, and representations presented by the Court -
- presented, the Court finds by clear and convincing evidence
that neither parent is able to provide a safe family home even
with the assistance of a service plan at this time or within a
reasonable period of time." As discussed above, there was clear
and convincing evidence Mother was not willing and able to
provide a safe family home, even with the assistance of a service
plan, and that it was not reasonably foreseeable Mother would
become willing and able to provide a safe family home, even with
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the assistance of a service plan, within a reasonable period of
time.
Therefore, IT IS HEREBY ORDERED that the Order
Terminating Parental Rights, filed on March 23, 2021, in the
Family Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, March 31, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Mother,
Self-represented Appellant /s/ Katherine G. Leonard
Associate Judge
Eric J. Alabanza
Julio C. Herrera, /s/ Sonja M.P. McCullen
Patrick A. Pascual, Associate Judge
Ian T. Tsuda,
Deputy Attorneys General,
for Petitioner-Appellee
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