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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-JUL-2021
07:47 AM
Dkt. 108 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF GL AND AL
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 17-00224)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Appellant Mother (Mother) and Cross-Appellant Father
(Father) appeal from the Order Terminating Parental Rights, filed
on November 30, 2020 (Termination Order), in the Family Court of
the First Circuit (Family Court).1 In the Termination Order, the
parental rights of Mother and Father to their children, GL and AL
(collectively Children), were terminated, and a permanent plan
with the goal of adoption was approved. On December 17, 2020,
the Family Court entered Findings of Fact and Conclusions of Law
(FOFs and COLs) regarding the Termination Order.
On appeal, Mother challenges FOFs 189-91 and 200, and
COLs 15 and 16.2 Mother contends there was no clear and
1
The Honorable Bode A. Uale presided.
2
FOFs 189-91, 200, and COLs 15 and 16 stated as follows:
189. Mother is not presently willing and able to
provide the Children with a safe family home, even with the
assistance of a service plan.
(continued...)
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convincing evidence she was not presently willing and able to
provide a safe family home, even with the assistance of a service
plan, or that it was not reasonably foreseeable she 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 Children's date of entry into
foster care. Mother also claims Petitioner-Appellee the State of
Hawai#i, Department of Human Services (DHS) did not provide a
reasonable opportunity for Mother to reunify with the Children
because she did not receive appropriate services, timely
referrals for services, or visitation with the Children despite
her requests.
2
(...continued)
190. It is not reasonably foreseeable that Mother
will become willing and able to provide the Children with a
safe family home, even with the assistance of a service
plan.
191. Under the circumstances presented by the case,
Mother was given every reasonable opportunity to effect
positive changes to provide a safe family home and to
reunify with the Children.
. . . .
200. 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.
. . . .
15. 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.
16. 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.
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On cross-appeal, Father challenges FOFs 172-74, 192-96,
199, 200, 202, and 203.3 Father contends there was no clear and
3
FOF 200 is quoted supra. FOFs 172-174, 192-96, and 199, 202, and
203 stated as follows:
172. Under the circumstances presented by this case,
Father was given every reasonable opportunity to effect
positive changes to provide a safe family home and to
reunify with the Children.
173. Father is not presently willing and able to
provide the Children with a safe family home, even with the
assistance of a service plan.
174. It is not reasonably foreseeable that Father
will become willing and able to provide the Children with a
safe family home, even with the assistance of a service
plan. Even if Father were to suddenly change his long
standing pattern of behavior, there is no likelihood that he
would sufficiently resolve his problems at any identifiable
point in the future.
. . . .
192. Having made the HRS § 587A-33(a)(1) and (2)
"parental unfitness" findings of fact, the court makes the
following findings of fact regarding the Permanent Plan,
dated February 25, 2020, pursuant to HRS § 587 A-33(a)(3).
193. The permanency goal of the February 25, 2020
Permanent Plan is adoption.
194. Any argument that the Children's desire to have
contacts with Father, [AL]'s desire to have contacts with
Mother, and the resource caregiver's position to allow such
visits if deemed therapeutically appropriate by the
Children's therapist and the visits are in the Children's
best interest is/are compelling reasons why the permanent
plan goal should be legal guardianship instead of adoption
as being in the Children's best interests is not credible
based on the credible evidence in the record and drawing all
reasonable inferences in the record. A legal guardianship
order with visitation provisions would only serve the
interests of Father and Mother, and not the Children's best
interests. Adoption would provide the adoptive parents the
ability to fully address all of the Children's physical and
emotional needs. More importantly, adoption would provide
the Children with a safe, permanent and lifetime home, in
accordance with the HRS § 587A-32(a) presumption that
adoption is in the Children's best interests.
195. There are no compelling reasons why the goals of
either legal guardianship or permanent custody is in the
Children's best interests. Therefore, the goal of adoption
is in the Children's best interests.
196. The Permanent Plan, dated February 25, 2020,
with the permanency goal of adoption, is in the Children's
best interests.
(continued...)
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convincing evidence he could not presently provide a safe family
home, even with the assistance of a service plan, or it was not
reasonably foreseeable he 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; that he was not given a
reasonable opportunity to reunite with the children; that the DHS
failed to identify the necessary, appropriate, and reasonable
services to address the safety issues and failed to make
appropriate and timely referrals for services; that the service
plan offered by the DHS was not fair, appropriate, and
comprehensive; that the permanent plan was not in the best
interest of the children; and that due to the failure to provide
timely referrals for services, there was a compelling reason for
the DHS to not file a motion to terminate parental rights.
Father also claims he was not provided reasonable visitation when
it was stopped from October 2018 to October 2020, and the DHS
failed to provide recommended services from Father's
psychological evaluation, such as in-home parenting or parent-
child attuned therapy, or to provide recommended services
stemming from paternal grandmother's psychological evaluation.
3
(...continued)
. . . .
199. Each of the service plans offered by the DHS and
ordered by the court were fair, appropriate, and
comprehensive.
. . . .
202. There were no compelling reason [sic] for the DHS not
to file its motion to terminate parental rights.
203. The exceptions to the requirement that the DHS
file its motion to terminate parental rights if either the
Children were in the continuous foster care of the DHS for
twelve consecutive months or an aggregate of fifteen out of
the most recent twenty-months from the Children's November
16, 2017 Date of Entry Into Foster Care under HRS §§ 587A-30
(c) and 587A-31(g) are not applicable based on the credible
evidence in the record. As noted above, the Children were in
the continuous foster care of the DHS for approximately
twenty-two months from the Children's November 16, 2017
Date of Entry Into Foster Care when the DHS filed its Motion
to Terminate Parental Rights in February 2020, and therefore
the DHS exceeded the statutory deadline to file its motion.
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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 and Father's points of error as follows, and
affirm.
Hawaii Revised Statutes (HRS) § 587A-33(a) (2018)
governs the termination of parental rights and provides in
relevant part, as follows:
(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; [and]
(3) The proposed permanent plan is in the
best interests of the child.
"Generally, the family court possesses wide discretion in making
its decisions and those decisions will not be set aside unless
there is a manifest abuse of discretion." In re Doe, 95 Hawai#i
183, 189, 20 P.3d 616, 622 (2001) (internal quotation marks and
citations omitted).
The 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
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this regard, if supported by the record and not
clearly erroneous, must stand on appeal.
Id. at 190, 20 P.3d at 623 (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.
On the other hand, the family court's COLs are
reviewed on appeal de novo, under the right/wrong
standard. COLs, consequently, are not binding upon an
appellate court and are freely reviewable for their
correctness.
Id. (citations, brackets, quotation marks, and ellipsis omitted).
"It is well-settled that an appellate court will not pass upon
issues dependent upon the credibility of witnesses and the weight
of evidence; this is the province of the trier of fact." Id.
(citations, brackets, and internal quotation marks omitted).
Unchallenged findings of fact are binding on appeal. In re Doe,
99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
The pertinent facts in common to both Mother's and
Father's appeals are as follows. The DHS confirmed the October
9, 2017 report of physical neglect, threat of abuse and threat of
neglect of the Children by Mother and Father because the then-
six-year-old twin Children were left alone in the family home
without adult supervision; they were exposed to the violent
incidents between Mother and Father, and illicit drug use by
Mother; and there were concerns about the physical condition of
the home. See FOFs 7, 8. The DHS assumed temporary foster
custody, and the Children were in the first foster care home from
October 9, 2017 to March 19, 2018. See FOFs 9, 98.
When they were first placed in the foster care home,
the Children were undisciplined, lacked any personal hygiene
skills, and were doing poorly academically, which the Family
Court found were the result of the neglect by Mother and Father,
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and the failure of Mother and Father to provide structure to the
Children. See FOFs 98, 113-15. The Children also engaged in
highly sexualized behavior, including but not limited to
excessive masturbation, had frequent nightmares and wet their
beds while they slept. FOF 116. The DHS removed the Children
from their first resource care home on March 19, 2018 at the
request of the resource caregiver because she found the
Children's behaviors too difficult to handle. FOF 98. The
Children were then placed with a teacher for one of the Children
who became a licensed resource caregiver; the Children have
continuously resided at this home. FOF 99.
In July 2018, the Children started therapy to address
the above-described behaviors. FOF 117. During the course of
therapy, the Children disclosed that: GL was sexually abused by
friends and/or associates of Mother, and that AL witnessed the
sexual abuse of GL; and GL was sexually abused by the Children's
adult paternal half-brother and that AL witnessed the sexual
abuse of GL. See FOFs 81, 82. The Family Court found that the
Children's allegations were credible, and that both were
traumatized by these experiences. FOF 83. GL also credibly
disclosed that Mother would leave the family home with AL,
leaving GL alone in the home for extended periods of time without
adequate supervision, and GL was left to care and feed herself,
provided that there was food in the family home. FOF 84.
The Children suffered from Post-Traumatic Stress
Disorder, nightmares, bed-wetting, and dissociative behaviors
"from the harm perpetrated by Father and Mother." FOF 86. The
Family Court found that the Children suffered psychological harm
from Father and Mother. FOF 87.
After two years in therapy, the Family Court found that
the Children "made tremendous gains behaviorally, emotionally and
academically in the absence of any contact from Father and
Mother." FOF 125. The undisciplined behavior, the bedwetting
and sexualized behaviors stopped, and the Children were in the
top five percent of their school class. Id. Even though the
Children had made tremendous strides in therapy and achieved a
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certain degree of emotional and behavioral stability, "any direct
and indirect contact with Father and Mother" would "endanger the
Children's emotional health and well-being, and negate all
therapeutic gains." FOF 124. At the time of the start of trial
on October 29, 2020, the Children's therapist testified that due
to the Children's progress, they were ready to have contact with
Father. FOF 127. Both Children were concerned about Father's
health4 and expressed the desire to have contact with him. FOF
110. However, the Children did not want to live with Father
because they believed that Father could not protect them from the
"bad people" who sexually abused GL, and that Father could not
play with them due to his health. Id.
The trial on the DHS's March 11, 2020 Motion to
Terminate Parental Rights was held on October 29, 2020 and
November 16 and 18, 2020. FOFs 65, 67. On November 25, 2020,
the Family Court entered its Amended Decision and Order, which
contained the HRS § 587A-33(a) findings by clear and convincing
evidence, and orders granting the DHS's motion, terminating
Mother's and Father's parental rights, and awarding permanent
custody to the DHS. FOF 68. On November 30, 2020, the Family
Court entered the Order Terminating Parental Rights, awarding
permanent custody to the DHS, and ordering the February 24, 2020
Permanent Plan, with the goal of adoption. FOF 69.
Mother
There was clear and convincing evidence to support FOFs
189, 190, COLs 15 and 16, that: Mother was not presently 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 the assistance of a service plan, within a
reasonable period of time not to exceed two years from the date
the children entered foster care on November 16, 2017.
4
Father suffers from a kidney condition that required him to be
away from the family home for significant periods of time to undergo dialysis
treatment. FOF 133.
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See FOFs 16, 95. Mother was absent for the first year of this
case, when she defaulted for failing to appear on November 16,
2017 until she appeared on November 14, 2018. See FOF 177.
During this one-year period, Mother did not maintain contact with
the DHS, and finally appeared at court after she was
incarcerated. Id. The Family Court found "Mother's lack of
progress in addressing her problems during this approximately
one-year period [wa]s due solely to Mother's failure to engage
with the court and the DHS." Id. On January 10, 2019, Mother
was ordered to follow the November 1, 2018 service plan, which
required Mother to participate in, inter alia, a psychological
evaluation, parenting classes, and domestic violence
intervention. See FOF 35. "Mother failed to appear for
psychological evaluations scheduled for February 2018, July 2019,
and twice in February 2020." FOF 178. The evaluation was
finally done over two years later, in June 2, 2020. Id. The
evaluation resulted in 13 recommendations for services to Mother,
including individual therapy, parenting education classes and
domestic violence counseling. See FOF 183. After Mother
participated in two parenting classes, the classes were suspended
due to the pandemic, and Mother had to be re-referred for
parenting classes. See FOF 185.
The Family Court found "Mother's defensiveness and/or
minimization of her problems, and lack of insight into her role
in causing the harm (and resulting trauma) to the Children [were]
tremendous barriers" to Mother making the positive lifestyle
changes necessary to reunify with the Children. FOFs 182, 184.
The record reflects that Mother had unaddressed issues which
demonstrated she was not presently willing and able to provide a
safe family home, even with the assistance of a service plan.
Thus, the Family Court's finding and determination in this
regard, in FOF 189 and COL 15, were supported by substantial
evidence and not clearly erroneous. See Doe, 95 Hawai#i at 190,
20 P.3d at 623.
When the hearing on the Motion to Terminate Parental
Rights concluded on November 18, 2020, the Children had been in
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foster care for over three years. Thus, the reasonable period of
time of two years had already been exceeded. See HRS § 587A-
33(a)(2). The Family Court found that "Mother cannot be
reunified with the Children at any reasonably foreseeable point
in the future," due to the "severity of the Children's mental
health problems arising out of the trauma caused by the magnitude
of the abuse perpetrated on them, the extent of Mother's
problems, Mother's lack of insight into her problems and her role
in causing the harm to the [C]hildren, and Mother's delays in
participating in services." FOF 187. Thus, the Family Court's
finding and determination, in FOF 190 and COL 16, that it was not
reasonably foreseeable Mother would become willing and able to
provide a safe family home, were supported by substantial
evidence and not clearly erroneous. See Doe, 95 Hawai#i at 190,
20 P.3d at 623.
Mother also claims the DHS did not make a reasonable
effort to reunify her with the children and argues the following
timeline: she voiced her desire to voluntarily comply with
services on October 16, 2017; she requested referral for services
and visits on April 30, 2019; there were still no referrals or
visits by May 16, 2019; Mother raised the issue of no referrals,
late referrals, or being placed on a waiting list on June 27,
2019; Mother again noted the lack of referrals for services on
October 15, 2019; and she contested a reasonable efforts finding
on June 22, 2020. Mother also complains that she was not
referred to non-offender sex abuse treatment like Father; was not
provided a therapist of Samoan descent or someone fluent in the
Samoan language and sensitive to her cultural background as
recommended by a psychological evaluation; was "never" given
visits by the DHS even though one of the Children was open to
visits with Mother; and the Children's therapist was not informed
of Mother's compliance but only her non-compliance; and the
Children's therapist stated there would be a benefit to informing
the Children of a parent's compliance in services. Mother's
arguments are without merit.
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"The child protective services under [HRS Chapter 587A]
shall be provided with every reasonable effort to be open,
accessible, and communicative to the persons affected by a child
protective proceeding without endangering the safety and best
interests of the child under this chapter." 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 "an
obligation 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).
Although Mother stated she desired to voluntarily
participate in services in October 2017 when the case began,
Mother was "absent from this case" soon thereafter on November
16, 2017 for a one-year period when she was incarcerated. FOF
177. Mother failed to participate timely in a psychological
evaluation, which took two years to complete because she did not
show up. See FOF 178. Even after Mother reappeared in the case
in November 2018, Mother did not follow up with the DHS referrals
for parenting education, and domestic violence intervention in a
timely and consistent manner. See FOF 185. At the time of
trial, the DHS was waiting for Mother to complete individual
therapy before re-referring her for other services because the
DHS did not want to overwhelm Mother with services due to her low
cognitive functioning. See id.
In 2019 there was also a brief period where a temporary
protective order was in place, prohibiting Mother and Father from
having any contact with the Children, from May 16, 2019 to June
7, 2019, due to Father's and Mother's May 10, 2019 unauthorized
contact with the Children. FOFs 40, 41. Father and Mother had
gone to the Children's school for the Children's school field
trip, with Mother going into the school to look for the Children
to see Father. FOF 146. Father and Mother followed the school
bus in an attempt to go on the field trip with the Children,
which they had no permission to do. Id. This unauthorized
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contact caused negative effects and regressive behaviors in the
Children. FOF 40.
In light of the record noted above, Mother's complaint
that a lack of referrals and visits by the DHS in 2019
demonstrated the DHS's lack of reasonable efforts at
reunification, is without merit. The record contains substantial
evidence that Mother "was given every reasonable opportunity" to
make the changes necessary to reunify with the Children; and
thus, FOF 191 was not clearly erroneous. See Doe, 95 Hawai#i at
190, 20 P.3d at 623. The record shows that the DHS exerted
reasonable and active efforts toward reunification through making
appropriate and timely referrals for the necessary, appropriate
and reasonable services, and that "[a]ny delays in the delivery
of services were due to . . . Mother's conduct;" thus, FOF 200
was not clearly erroneous. See id.
We briefly address Mother's remaining arguments as
follows. Non-offender sex abuse treatment was not recommended
for Mother. The recommendation that Mother's therapist be of
Samoan descent or be fluent in Samoan was not made until she
completed her psychological evaluation in 2020. See FOFs 178,
183. The Family Court found that "language was not a barrier" in
Mother's counseling participation. FOF 186. Finally, Mother's
claim that she was never provided with visits is without merit.
When Mother re-appeared in the case in November 2018, the Family
Court was addressing the Children's 2018 disclosures of sexual
abuse by "Mother's friends and/or associates" and by their adult
half-brother. FOFs 28, 30, 81, 82. The Family Court found that
"any direct and indirect contact with Father and Mother before
the Children had adequately and appropriately addressed the
trauma" they had suffered while in the care of Mother and Father
"would endanger the Children's emotional health and well-being .
. . ." FOF 124. Any contact with Mother and Father was subject
to the Children's therapist's recommendation. Id. The
Children's therapist did not recommend visits with Mother by the
time her parental rights were terminated on November 30, 2020,
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even though one of the children indicated a willingness to visit
with Mother. See FOFs 111-12.
For all of the reasons supra, we affirm the Termination
Order as to Mother.
Father
Father first contends that FOFs 173 and 174, that
Father was not presently willing and able to provide a safe
family home, and that it was not reasonably foreseeable that
Father would become willing and able to provide a safe family
home, even with the assistance of a service plan, were not
supported by clear and convincing evidence. This contention is
without merit.
The record reflects substantial evidence of Father's
inability to provide a safe family home, even with a service
plan, both presently and within a reasonable period of time not
to exceed two years from November 16, 2017. The Family Court
found that Father was away from the family home for significant
periods of time due to his dialysis treatment, and Father would
leave the Children either unsupervised or with inappropriate
caregivers while undergoing dialysis. FOF 133. Father's health
raised concerns about his ability to physically meet the demands
of caring for and supervising the Children. FOF 134. Prior to
the suspension of his visits in October 2018, Father stayed in
his van while the Children were at the playground, instead of
interacting with and supervising the Children. Id. Even when
Father was home with the Children, Father had relied on others,
such as his adult son (the Children's adult half-brother who
sexually abused GL) to care for the Children. FOF 135. Father
had also relied on Mother to care for the Children, even though
he was home and knew that Mother was unable to safely care for
the Children. Id.
The Family Court found that Father did not have
appropriate and healthy views about parent-child roles, and
believed that the Children, even at their young age, were
responsible to care for the adult, instead of the adult being
responsible to care for the child. FOF 136. Father saw the
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Children "as objects for adult gratification" and placed "his
need before the needs of the Children." Id. Father had "no
insight into the physical and emotional needs of the Children and
the trauma suffered" by them. FOF 137.
Contrary to Father's claim that "Father completed his
services and only needed visitation to be able to start so he
could have a chance at reunification," the Family Court found
that "it is possible for the parents to participate in and
complete services and yet fail to make appropriate lifestyle
changes necessary for the parents to be able to provide a safe
family home for their children." FOF 73. "Unless parents are
sincerely motivated to make such lifestyle changes, are honest
and truthful in services regarding their problems, and gain
insight into all of their behaviors that led to their children to
be harmed and/or subject to threatened harm, the parents will not
be able to make the necessary and appropriate internal changes to
allow them to provide a safe family home for their children."
Id. While Father completed parenting education, and engaged in
individual therapy to address his anxiety, depression, and
domestic violence issues, the Family Court was not convinced that
Father had acknowledged his son's sexual abuse of GL, or
acknowledged all of the trauma suffered by the Children, and the
effects of such trauma. See FOFs 148, 163-64. The Family Court
did not believe Father's promise to apply all the skills he
learned in these services he had received. See FOFs 165, 210.
Even though Father had "just completed" the required "non-
offender sexual abuse education/therapy" by the time of trial,
the therapist could not determine whether Father "benefitted and
integrated the concepts that were taught to him in non-offender
sexual abuse education/therapy." FOFs 165, 167. Further, Father
had delayed in completing this service plan requirement due to
Father's delay in contacting the provider, and later failing to
participate in the services in a timely manner. See FOF 165.
Ultimately, the Family Court determined in unchallenged
FOF 168 that, even after Father's completion of the services,
Father would "continue to pose a substantial foreseeable threat
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of harm" to the Children and that Father would "not be willing
and able to provide a safe home for the Children." The Court
found that at the time of trial, Father "continues to place his
needs for self-gratification over the enormous physical and
mental health needs of the Children" and that Father "has no
insight into the magnitude of the harm and the resultant severe
trauma suffered by the Children." Id. In light of the record
described supra, FOFs 173 and 174, regarding the Family Court's
determinations of Father's present and potential ability to
provide a safe family home, were supported by substantial
evidence and not clearly erroneous. See Doe, 95 Hawai#i at 190,
20 P.3d at 623.
Father next challenges FOFs 172, 199, and 200,
contending that he was "not given a reasonable opportunity to
reunite" with the Children before his parental rights were
terminated, because the DHS: failed to provide reasonable
visitation between October 2018 to October 2020; failed to
provide in-home parenting or parent-child attuned therapy as
recommended by Father's psychological evaluation and instead
provided the resource caregiver with parenting services; and the
DHS failed to provide services recommended for paternal
grandmother in her psychological evaluation. These contentions
are without merit.
The Family Court found that Father's failure to reunify
with the Children within a reasonable period of time within two
years of November 16, 2017, was "due to his own conduct, by
placing his needs over the needs of the Children." FOF 169.
The Family Court heard and rejected Father's complaint "that the
DHS did not make timely referrals for services for him," finding
Father's claim "not credible." FOF 170.
Under the circumstances, the DHS made timely referrals for
services, and any delay in the completion of services was
the result of Father's conduct. More importantly, the
ability to provide timely services, such as family therapy,
was heavily impacted by the Children's mental health
condition and needs which was caused by the trauma they
suffered while in Father's care.
Id.
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Contrary to Father's assertion, the record reflects
that Father was afforded reasonable visitation under the
circumstances, between October 2018 to October 2020. Prior to
the suspension of visitation in 2018, the Family Court found that
Father had "no insight into the physical and emotional needs of
the Children and the trauma suffered by the Children, which was
caused by his inappropriate care of the Children, and the severe
effects of the trauma." FOF 137. At the September 26, 2018
visit, Father told the visitation supervisor that he was
cancelling the next visit scheduled for September 29, 2018 to
"discipline the Children because the Children were not obeying
him during the visit." FOF 138. During supervised visits,
Father also continuously violated the DHS's and the visitation
supervisor's instructions not to discuss the Child Protective Act
case with the Children, and Father repeatedly told the Children
not to talk to the DHS social worker and their Guardian ad Litem
(GAL). FOF 139. Generally during visits, the Family Court found
that Father would remain in his van while the Children played at
the playground, Father would not interact with the Children while
they played, and at times, Father would fall asleep in his van
while the Children were at the playground. FOF 140.
The visits with Father were suspended in October 2018,
in consultation with the GAL and the Children's therapist,
because the Children displayed "regressive negative behavior"
such as "bedwetting and nightmares" whenever Father had "direct
and indirect contact with the Children" and due to Father's
failure to follow the DHS's instructions to not discuss this case
with the Children. FOFs 27, 123, 141. The Family Court
determined that "any direct and indirect contact with Father and
Mother before the Children had adequately and appropriately
addressed the trauma caused while in the care of Mother and
Father would endanger the Children's emotional health and
well-being, and negate all therapeutic gains." FOF 124.
In November 2018, a month after Father's visits were
suspended, the Children disclosed additional sexual abuse against
GL by their adult half-brother, which AL had witnessed. FOFs 82,
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83, 154. Father's visits continued to be suspended for the
additional reason that he "did not believe that his son sexually
abused [GL]." FOFs 29, 30, 155.
During the suspension of visitation period, Father
continued to violate the court orders and the DHS's instruction
not to contact the Children. See FOF 142. Father would violate
the no-contact order and the DHS's instruction, by asking other
children in his building to pass notes to the Children at school
and relaying oral messages to them through the neighborhood
children, FOF 144; driving by the Children's school to attempt to
physically contact them, FOF 145; appearing at the school in May
2019 with Mother who removed the Children from a cafeteria to
talk with Mother and Father, then following a bus taking the
Children on a school field trip, FOF 146, noted supra. The
Family Court found that "Father's willful violation of the
DHS'[s] instructions and the Court's orders not to have direct
and indirect contact with the Children shows Father's propensity
to place his needs over the needs of the Children without any
regard to any negative consequences of his conduct on the
Children." FOF 147. In November 2019, the Family Court found
that both parents had made "minimal progress in addressing" their
problems, and that DHS was making reasonable efforts to "finalize
the concurrent permanency goals of reunification and adoption[.]"
FOF 50. Father still had to complete his services, and the
Family Court determined that Father could not have contact with
the Children until the DHS, the GAL, and the therapist agreed
that such contact was "therapeutically appropriate for the
Children[.]" FOF 53. The therapist did not feel that the
Children were therapeutically ready for visits with Father, until
the end of 2020. "On October 29, 2020, [the therapist] testified
credibly that the Children may be ready to have contact with
Father. As a result, the Court authorized the DHS to arrange a
visit between the Children and Father." FOF 127. Pursuant to
the Court's October 29, 2020 order, the Children and Father had a
"virtual visit" where the therapist conducted a family therapy
session. FOF 128. The Children did not appear to have been
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traumatized by this visit. Id. Thus, the record shows that
Father was afforded reasonable visitation under the
circumstances.
Father's remaining arguments about the services
provided, or not provided by the DHS, have no merit. The Family
Court rejected these same claims at trial, finding that "Father's
testimony and representations that the DHS did not make timely
referrals for services for him" were "not credible" and "not
supported by the credible evidence." FOF 170. Father's
complaint that the parent-child therapy was afforded to the
resource caregiver and not Father, was because the therapy was
immediately necessary due to the severity of the Children's
trauma-related behaviors; and to have the Children engage in such
therapy with Father when they were not ready, risked further
emotional harm to the Children. See FOF 130. The Family Court
found that "[a]t no time during the three-year pendency" of this
case were the Children ready to have such therapy with Father.
FOF 130.
Finally, Father's claim that the DHS failed to provide
services stemming from paternal grandmother's psychological
evaluation is inapposite. "[Grandmother's] evaluation raised
concerns" about her "low cognitive functioning, and her
minimization of the concerns about Father's parenting and the
sexual abuse allegations[,]" and there were also concerns about
grandmother's visa. FOF 160. The DHS also had concerns that
grandmother "would defer all decisions to Father because
culturally she had to defer all decisions [sic] Father who was
the head of the household." FOF 161. However, the DHS was not
ordered to provide recommended services. The grandmother later
returned to Australia. FOF 162.
In sum, the record reflects substantial evidence of the
DHS's reasonable, active efforts at reunification, and provision
of services to Father that were reasonable, fair, appropriate,
and timely under the circumstances. Thus, FOFs 172, 199, and 200
were not clearly erroneous. See Doe, 95 Hawai#i at 190, 20 P.3d
at 623.
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Regarding Father's challenge to FOFs 202 and 203,
Father claims that there were compelling reasons for the DHS not
to file its motion to terminate because the DHS did not make
reasonable efforts to reunify Father and did not provide him the
reasonable opportunity to reunify with the Children. The
identical language of HRS §§ 587A-30(c)(2) (2018) and 587A-
31(g)(2) (2018)5 required the DHS to file a motion to terminate
parental rights if the Children had been in foster care for an
aggregate 15 out of the most recent 22 months from November 16,
2017 unless, inter alia, the DHS did not provide timely services
to Father to effectuate reunification. Here, the Family Court
found that the DHS made appropriate and timely referrals for
Father's services, treated Father fairly, and "intensely"
serviced the entire family. FOFs 200, 201. The record in
totality reflects substantial evidence to support the Family
Court's determination that there was no compelling reason and no
exception that applied, for the DHS not to file a motion to
terminate; and thus, FOFs 202 and 203 were not clearly erroneous.
See Doe, 95 Hawai#i at 190, 20 P.3d at 623.
Father next challenges FOFs 192-96, and claims that
"[t]erminating Father's rights and supporting a permanent plan
for adoption under these findings and conclusions is not in the
children's' best interest." Father argues that even though
maintenance of family connections was in every permanent plan,
the resource caregiver was a non-relative, and the DHS did not
make reasonable efforts to place the Children with any relatives,
including the grandmother. Maintenance of family connections is
a relevant factor of the permanent plan and subject to the
5
The language in HRS §§ 587A-30(c)(2) and 587A-31(g)(2) provides,
as follows:
(2) The department 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.
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child's best interest standard. HRS § 587A-32(a)(4)6 (2018) and
HRS § 587A-33(a)(3).
Here, the Family Court considered the issue of
maintaining family connections, and rejected legal guardianship,
based on the "credible evidence in the record." FOF 194. The
Family Court found that adoption would "provide the adoptive
parents the ability to fully address all of the Children's
physical and emotional needs." Id. More importantly, the Family
Court found that adoption would provide the Children "with a
safe, permanent and lifetime home, in accordance with the HRS §
587A-32(a) presumption that adoption is in the Children's best
interests." Id. The Family Court did find that the resource
caregiver "expressed the desire and the willingness to adopt the
Children," and he would allow the Children "to visit with Father
and/or Mother, as long as the visits/contacts are approved by the
Children's therapist and are in the Children's best interests."
FOF 106. "[The] DHS did explore relatives proposed by Father
and/or Mother, but the DHS assessed that placement with these
relatives would not be in the Children's best interests." FOF
107. The Family Court retains wide discretion in Child
Protective Act cases. See Doe, 95 Hawai#i at 189, 20 P.3d at
622. There was substantial evidence in the record supporting the
Family Court's support of the permanent plan for adoption and
thus, FOFs 192-96 were not clearly erroneous. See id. at 190, 20
P.3d at 623. We will not pass upon issues dependent upon the
credibility of witnesses and the weight of the evidence, as this
is the province of the trier of fact, the Family Court in this
case. Id.
For all of the reasons supra, we also affirm the
Termination Order as to Father.
6
With regard to the permanent plan, HRS § 587A-32(a)(4) states in
relevant part:
(4) Establish other related goals, including those
pertaining to the stability of the child's placement; education;
health; therapy; counseling; relationship with the child's birth
family, including visits, if any; cultural connections; and
preparation for independent living[.]
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Therefore, IT IS HEREBY ORDERED that the Order
Terminating Parental Rights, filed on November 30, 2020, in the
Family Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, July 20, 2021.
On the briefs:
/s/ Katherine G. Leonard
Tae Chin Kim Presiding Judge
for Mother-Appellant
/s/ Keith K. Hiraoka
Crystal M. Asano Associate Judge
for Father-Cross-Appellant
/s/ Karen T. Nakasone
Patrick A. Pascual Associate Judge
Julio C. Herrera
Deputy Attorneys General
for Petitioner-Appellee/Cross-
Appellee
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