NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-APR-2021
07:50 AM
Dkt. 38 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF BK
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 18-00290)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Appellant RC (Mother) appeals from the "Order Termi-
nating Parental Rights" entered by the Family Court of the First
Circuit1 on September 17, 2020. For the reasons explained below,
we affirm.
Mother does not challenge the following facts found by
the family court: BK (Child) was born in 2016. Mother is Child's
mother. Child suffers from Fetal Alcohol Spectrum Disorder,
which was caused by Mother's alcohol use during pregnancy.
In December 2017, the State of Hawai#i Department of
Human Services (DHS) took Child into protective custody after
Mother, with Child nearby, was found unresponsive at a park near
their home. Mother was taken to a medical facility, where Mother
tested positive for marijuana and had a blood alcohol content of
.22. Mother entered into a voluntary foster custody agreement
with DHS, as part of which she agreed to participate in various
programs. Child was returned to Mother's care in January 2018.
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The Honorable Andrew T. Park presided.
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In March 2018, DHS again took Child into protective
custody after Mother left Child with a stranger at a beach park,
and Child suffered injuries. Mother was not coherent when she
returned to the beach park, and was involuntarily hospitalized.
Mother entered into another voluntary foster custody agreement,
and Child was again returned to Mother. In August 2018, Mother
completed the residential portion of a substance abuse treatment
program and moved with Child to a clean and sober home.
In November 2018, HPD investigated a report of a woman
with a child screaming incoherently in the street. Responding
officers observed Mother lying on the sidewalk; she did not
appear to be breathing. Child — at the time about two years and
six months old — was found wandering nearby, wearing only a
shirt. Mother was transported to Queen's Medical Center. Child
was transported to Kapi#olani Medical Center for Women and
Children.
On November 14, 2018, DHS filed a petition for
temporary foster custody over child. Mother stipulated to foster
custody of Child and to a DHS service plan. On January 7, 2019,
the family court entered "Orders Concerning Child Protective
Act." Child's date of entry into foster care was January 7,
2019. A further hearing was set for April 1, 2019.
Mother failed to appear at the April 1, 2019 hearing.
The family court entered "Orders Concerning Child Protective Act"
on April 10, 2019. A further hearing was set for June 26, 2019.
Mother appeared for the June 26, 2019 hearing, and at further
hearings on December 11, 2019, and February 6, 2020.
On June 17, 2020, DHS filed a motion to terminate
Mother's parental rights. Mother requested a trial. A trial was
held on August 6, 2020.2 The family court entered the Order
Terminating Parental Rights on September 17, 2020 (Mother's
parental rights to five older children had been terminated in
1997, 2006, 2012, and 2013). This appeal followed.
2
The Honorable Paul T. Murakami presided.
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[T]he family court possesses wide discretion in making its
decisions and those decision[s] will not be set aside unless
there is a manifest abuse of discretion. Thus, we will not
disturb the family court's decisions on appeal unless the
family court disregarded rules or principles of law or
practice to the substantial detriment of a party litigant
and its decision clearly exceeded the bounds of reason.
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)
(citation omitted).
Hawaii Revised Statutes (HRS) § 587A-33 (2018) governs
termination of parental rights. The statute provides, in
relevant part:
§ 587A-33 Termination of parental rights hearing.
(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[.]
Mother challenges the family court's findings of fact
(FOF) nos. 41, 42, 44, 58, and 59, and paragraph B of the Order
Terminating Parental Rights. The family court's findings of fact
are reviewed under the "clearly erroneous" standard. Fisher, 111
Hawai#i at 46, 137 P.3d at 360. A finding of fact is clearly
erroneous when the record lacks substantial evidence to support
the finding, or 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. "It 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 evidence; this is the province of the
trier of fact." Id. (citation omitted).
The family court found:
41. During this case, Mother did not participate in
a substance abuse assessment, random urinalysis, psycho-
logical evaluation/mental health assessment, Alcoholics
Anonymous/Narcotics Anonymous Meetings, parenting education
and outreach, [or] hands-on parenting, and sporadically
cooperated with the DHS and work in partnership with the
DHS, which typically coincided with her incarceration.
Mother contends FOF 41 is clearly erroneous because she
"testified at trial that she had done an assessment with Arielle
with Women's Way and she participated in Parenting Classes being
offered by Oahu Community Correctional Center." But Mother
admitted she did not give the Women's Way substance abuse
assessment to DHS. DHS social worker Corinne Ready testified
that after speaking with Arielle, she (Ready) was not sure a
substance abuse assessment was actually performed. The Family
Court found Ready to be a credible witness. Mother testified she
participated in a six-week parenting class for three weeks.
Ready testified that the parenting class actually lasted 12
weeks. FOF 41 is supported by substantial evidence and is not
clearly erroneous.
The family court found:
42. At the time of the August 6, 2020 trial, Mother
was incarcerated at Oahu Community Correctional Center
(OCCC) and was serving out the remainder of her 180 day
incarceration for a probation violation that was scheduled
to end in approximately November 2020.
Mother does not deny being incarcerated for probation violation,
but contends that FOF 42 is clearly erroneous. Mother testified
she was eligible to be released earlier than her scheduled
November 2020 release, if she were to be admitted into a
residential drug treatment program approved by her probation
officer. At the time of trial, Mother testified she filled out
residential drug treatment program applications and was "waiting
for my [probation officer] to approve it." FOF 42 is supported
by substantial evidence and is not clearly erroneous.
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The family court found:
44. Mother's substance abuse problem is so pervasive
that neither the consequences of incarceration nor the
termination of her parental rights were enough of a
deterrent for her to seek treatment for the problem.
Mother contends FOF 44 is clearly erroneous. She argues that she
is going to do everything in her power to get her child back.
FOF 44 is not a finding about Mother's future actions or
intentions; it is a finding about Mother's past actions, or lack
thereof, that indicate she did not seek treatment despite
incarceration and termination of her parental rights to her five
older children. Mother admitted her problem in this case was
similar to her five prior termination of parental rights cases,
all of which involved alcohol. Termination of parental rights to
older children may be considered in determining whether a parent
can provide a safe family home. In re BP, 112 Hawai#i 309, 312,
145 P.3d 852, 855 (App. 2006). Mother also admitted that she had
been incarcerated seven times since the inception of this case
but had not completed any recommended services. FOF 44 is
supported by substantial evidence and is not clearly erroneous.
The family court found:
58. Under the circumstances presented by the instant
case, the DHS gave Mother . . . every reasonable opportunity
to succeed in remedying the problems which put the Child at
substantial risk of being harmed in the family home and to
reunify with the Child.
Mother contends FOF 58 is clearly erroneous because:
Over the course of the case, the DHS social worker only
spoke with Mother once, when Mother called the social worker
and that was the only time they spoke. Although the social
worker stated she tried to contact mom while incarcerated by
contacting the case manager at the jail, the social worker
did not make an attempt to visit Mother while she was
incarcerated. The social worker stated she didn't attempt
to contact Mother's probation officer during the duration of
this case.
However, an April 16, 2020 Safe Family Home Report stated that a
DHS worker made multiple face-to-face contacts with Mother and
Child. Mother stated she did not keep in contact with DHS
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because she did not have a phone. Mother also could not be
located after her releases from incarceration on October 28,
2019, and on March 22, 2020. DHS social worker Ready testified
she did not contact Mother's probation officer because she was
not able to contact Mother to obtain her consent to speak with
her probation officer. Mother was not able to participate in any
services due to being incarcerated. DHS is not required to
provide services beyond what was available within the correction
system. In re Doe, 100 Hawai#i 335, 345, 60 P.3d 285, 295
(2002). Mother admitted DHS offered her services when she was
not incarcerated, and DHS never failed or refused to refer her to
something she requested. FOF 58 is supported by substantial
evidence and is not clearly erroneous.
The family court found:
59. Under the circumstances presented in this case,
the DHS treated Mother . . . fairly and serviced the entire
family intensely since the start of the DHS and Court
intervention with this family.
Mother contends FOF 59 is clearly erroneous because "Mother came
up with her own plan to participate in services, she sought out
treatment and got applications in without the aid of DHS." As
noted above, Mother does not dispute DHS offered her services
when she was not incarcerated. The record establishes that
Mother entered into two voluntary foster custody agreements with
DHS, as part of which she agreed to participate in various
programs, but failed to do so. Mother testified that she did not
know she had to participate in the programs offered through DHS.
FOF 58 is supported by substantial evidence and is not clearly
erroneous.
Paragraph B of the family court's September 17, 2020
Order Terminating Parental Rights concluded:
B It is not reasonably foreseeable that [Child's] legal
mother . . . will become willing and able to provide
[Child] with a safe family home, even with the
assistance of a service plan, within a reasonable
period of time[.]
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Paragraph B is a mixed finding of fact and conclusion of law. We
review it under the "clearly erroneous" standard because the
family court's conclusion is dependent on the facts and
circumstances of Mother's case. Estate of Klink ex rel. Klink v.
State, 113 Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A
conclusion of law that is supported by the trial court's findings
of fact and reflects an application of the correct rule of law
will not be overturned. Id.
Mother contends the family court erred in concluding
that it is not reasonably foreseeable that she will become
willing and able to provide Child with a safe family home within
a reasonable time; Mother argues that she "has a plan to provide
a safe family home in the reasonably foreseeable future by
getting early released to [a] treatment program and maintain
sobriety." The uncontroverted evidence showed that Child has
been in and out of foster care since December 2017; Child's most
recent date of entry into foster care was January 7, 2019. At
the time of the trial, Child had been in DHS foster custody for
approximately 20 consecutive months, during which time Mother has
been unable to provide Child with a safe family home despite her
prior participation in various DHS programs and services, and
despite the January 7, 2019 court order that she participate in
other programs and services, which she failed to do.
The family court correctly applied HRS § 587A-33 to the
facts it found, which were supported by substantial evidence.
The Order Terminating Parental Rights entered by the family court
on September 17, 2020, is affirmed.
DATED: Honolulu, Hawai#i, April 5, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Kaupenaikaika F. Soon, Chief Judge
for Appellant RC.
/s/ Katherine G. Leonard
Kurt J. Shimamoto, Associate Judge
Julio C. Herrera,
Patrick A. Pascual, /s/ Keith K. Hiraoka
Deputy Attorneys General, Associate Judge
State of Hawai#i,
for Appellee Department of
Human Services.
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