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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-AUG-2021
07:55 AM
Dkt. 88 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF KJ-I AKA KKJ-I
AND KJ-I AKA KMKJ-I
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 17-00274)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Respondent-Appellant Mother (Mother) appeals and
Respondent-Cross-Appellant Father (Father) cross-appeals from the
Order Terminating Parental Rights (Termination Order), entered
November 9, 2020, in the Family Court of the First Circuit
(Family Court),1 which terminated each of their parental rights
to KJ-I aka KKJ-I (Son) and KJ-I aka KMKJ-I (Daughter) (together,
Children).
On appeal, Mother and Father (together, Parents)
challenge various Findings of Fact (FOFs) and Conclusions of Law
(COLs) and contend the Family Court erred in concluding that they
were not presently willing and able to provide a safe family home
for the Children even with the assistance of a service plan, nor
would they be in the reasonable foreseeable future, because
Petitioner-Appellee State of Hawai#i Department of Human Services
1
The Honorable John C. Bryant, Jr. presided.
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(DHS) failed to provide reasonable efforts to reunify them with
the Children.2 Father additionally contends the Family Court
erred in finding that the April 21, 2020 Permanent Plan
(Permanent Plan) was in the Children's best interests as it was
out-of-date, contained errors, and had the goal of adoption by
the Children's ex-maternal aunt by marriage (Aunt) rather than
the maternal blood uncle (Uncle), despite that they had divorced
by the time of trial and despite Parents' preference for Uncle to
adopt the Children.
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.
The pertinent background is as follows. On November
25, 2017, the DHS assumed protective custody of newborn Daughter
and one-year-old Son and placed them with Uncle and Aunt, who had
just taken Son into their home at the time, per Mother's request.
The DHS became involved after receiving a November 24, 2017
report of alleged threat of abuse and neglect of Daughter by
Mother, when Mother tested positive for amphetamines when
Daughter was born on November 22, 2017. Uncle and Aunt reported
that Mother had called them on November 23, 2017, and asked them
to pick up Son from Father's house out of concern that Child
Protective Services might take Son. When Aunt and Uncle picked
up Son, they observed that: his bottom had a "sore . . . that
was oozing," as well as scars and "what appeared to be bite
marks"; he did not yet walk; he screamed when given a bath; and
2
"DHS is under an obligation to provide a reasonable opportunity to
parents through a service plan to reunify the family" and "to make reasonable
efforts to reunite parent and child." In re Doe, 100 Hawai#i 335, 343, 60
P.3d 285, 293 (2002).
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he had nightmares. Uncle reported that Mother had been using
methamphetamine for more than 15 years.
On November 29, 2017, the DHS filed a Petition for
Temporary Foster Custody (Petition) alleging harm by Parents to
the Children. The Family Court conducted a temporary foster
custody hearing on the Petition on December 1, 2017, where
Parents stipulated to the Petition, foster custody and the
service plan. The Family Court awarded foster custody to the
DHS, establishing the Children's date of entry into foster care
as December 1, 2017.
The April 30, 2018 Safe Family Home Report indicated
that: Parents had participated in supervised visits with the
Children at Aunt and Uncle's home; Parents failed to show up for
drug screening; the lab was unable to contact Mother to start
screening despite several attempts; and Father tested positive
for methamphetamines. The Guardian Ad Litem (GAL) reported that
Parents did not consistently visit the Children, and Aunt and
Uncle had difficulty contacting them.
At a May 14, 2018 review hearing, the Family Court
defaulted Parents for failure to appear.
The September 21, 2018 Safe Family Home Report
indicated that Mother and Father admitted to using illicit
substances; Mother was scheduled to enter residential treatment
in October 2018, but Father had not been in contact with DHS
since July 2018. Mother failed to show up to her psychological
evaluation, but Father showed up for his. The GAL reported that
Mother was making efforts to reunify, but Father was not making
any meaningful attempt; and the Children were very bonded with
Aunt and Uncle.
At the October 2, 2018 review hearing, the Family Court
set aside Parents' default since both Mother and Father appeared.
The court ordered Parents to follow the latest service plan.
The February 25, 2019 Safe Family Home Report indicated
that: Mother left drug treatment; Parents had not completed any
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services on the recommended service plan; and Parents had no
contact with the DHS since the October 2018 hearing. The DHS had
located Mother at her address, which was boarded up and did not
appear to be a safe place, but Mother was not interested in
talking; Mother promised to come to the DHS office later to
discuss the case but did not do so. The DHS tried to visit
Father at his home but could not get past the locked gate. The
March 13, 2019 GAL report noted that Parents visited the Children
only twice the previous month; recommended termination of
parental rights; and adoption by Aunt and Uncle.
At the March 20, 2019 review hearing, the DHS indicated
it planned to move to terminate parental rights. Mother's
counsel requested that the DHS continue to offer Mother services,
and the Family Court responded that the DHS should continue
making reasonable efforts at reunification and to offer services.
The July 16, 2019 Safe Family Home Report indicated
that both Mother and Father had continually been referred to
substance abuse assessments in 2019 and did not follow through,
but both Parents had completed their psychological evaluation.
The DHS referred Parents for therapy and parenting education on
June 21, 2019. The July 29, 2019 GAL report indicated that: the
Children were thriving with Aunt and Uncle; Parents did not
maintain regular contact with the DHS; Parents had irregular
visits with the Children; and Parents had not followed through
with services aside from completing their psychological
evaluation. The GAL recommended terminating parental rights and
awarding adoption to Aunt and Uncle.
At the August 5, 2019 review hearing, Mother's counsel
stated the DHS should continue the reasonable efforts to offer
services. The Family Court cautioned Parents that the next court
date would fall over two years past the December 1, 2017 date of
the Children's entry into foster care, and that "nothing" had
been done "aside from the psychological evaluation" and that
"it's now or never" for Parents to comply.
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The December 2, 2019 Safe Family Home Report indicated
that while Mother participated in a therapy assessment and one
therapy session, she thereafter failed to respond to the
counseling center's attempts to contact her; Father did not show
for his therapy assessment and failed to respond to attempts to
contact him for therapy and for parenting classes. The Initial
Permanent Plan had a goal of adoption within six months and
stated that Aunt and Uncle wanted to adopt the Children. The
December 17, 2019 GAL report noted that Parents had not
demonstrated they were willing and able to provide a safe family
home; Parents had made minimal progress with their service plan;
and that termination of parental rights would be in the
Children's best interest with awarding adoption to Aunt and
Uncle.
In December 2019, Aunt, the Children, and Aunt's own
children moved to a new apartment, as Aunt and Uncle had
separated in November 2019. On December 20, 2019, the DHS filed
a Motion to Terminate Parental Rights (Motion to Terminate).
The April 21, 2020 Permanent Plan indicated a
permanency goal of adoption within six months, and noted that
Aunt and Uncle were going through a divorce; the Children had
remained with Aunt but Uncle wanted the Children to move with
him; Uncle's living situation and finances were unstable; Uncle
had no driver's license to take the Children to their
appointments; and Uncle could not get a driver's license because
of unpaid child support. The DHS determined that the Children
should continue to live with Aunt who wanted to adopt them.
The final April 21, 2020 Safe Family Home Report
indicated that Parents' non-compliance with court-ordered
services was continuing and that the DHS felt Parents were not
now or in the foreseeable future able to provide a safe family
home for the Children even with the assistance of a service plan,
and recommended termination of parental rights.
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The trial on the Motion to Terminate was held on
October 15, 2020. The DHS Social Worker and Father testified,
and Mother did not.
On October 22, 2020, the Family Court orally granted
the Motion to Terminate, noting that neither parent had completed
the ordered services, and finding that DHS had shown, by clear
and convincing evidence that: Parents "are not able or willing
to presently provide the [C]hildren with a safe family home even
with the assistance of a service plan," that "it is not
reasonably foreseeable that they will become willing and able to
do so," and that the Children had been in foster custody for over
34 months. Regarding the Permanent Plan, the Family Court noted
that: the Children had lived exclusively with Aunt since she and
Uncle separated in November 2019; neither Parent had moved to
consider placement of the Children with Uncle; the Children were
"doing well" with Aunt; and "it is too late and not in the
[C]hildren's best interest to find that the proposed adoptive
placement" should be changed from Aunt to Uncle; therefore, the
DHS had shown by clear and convincing evidence that the Permanent
Plan was in the Children's best interest.
On November 9, 2020, the Family Court entered the order
terminating Parents' parental rights, ordered the Permanent Plan,
and awarded permanent custody to the DHS. On December 18, 2020,
the Family Court entered its FOFs and COLs. This appeal
followed.
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;
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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
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.
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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 the 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).
Mother
In support of her argument that the DHS failed to
provide reasonable efforts to reunify her with the Children,
Mother contends that: (1) at the March 20 and August 5, 2019
review hearings, she requested that the DHS continue to offer her
services, but at trial, the DHS Social Worker could not explain
why the last contact with Mother listed in the Final Safety
Report was made in April 2019; and (2) Mother's psychological
evaluation recommended a "dual-diagnosis service" addressing her
substance abuse and mental health at the same time, but the DHS
Social Worker "admitted" at trial that she did not know whether
the treatment services she referred to Mother were dual-diagnosis
providers, and she further testified that she relied on Mother to
"find her own treatment provider."
Mother's first argument misstates the record. The DHS
Social Worker's last attempt to contact Mother noted in the April
21, 2020 Final Safe Home Report, was made on November 8, 2019,
not in April 2019. The report indicated that the Social Worker
made thirteen attempts to either contact Mother or make service
referrals for her after the March 20, 2019 hearing, and four more
attempts after the August 5, 2019 hearing. Thus, the record does
not indicate that the DHS failed to make service referrals for
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Mother after she made requests for continued services, and
Mother's contention is without merit.
Mother's second argument is also without merit, because
it rests on a factual premise that does not exist in the record.
Mother's psychological evaluation never used the term "dual-
diagnosis," nor did the evaluation indicate that Mother was
"diagnosed" with any form of mental illness. Thus, Mother was
not recommended to complete treatment for "dual-diagnosis," but
rather recommended to receive treatment that addresses both
substance abuse and trauma. In her trial testimony, the DHS
Social Worker explained that she did not agree the psychological
evaluation necessarily recommended a "dual-diagnosis" treatment,
but rather, that Mother "could go into a treatment facility and
get therapy." The DHS Social Worker recommended Mother for both
drug treatment and therapy.
Accordingly, the Family Court did not clearly err in
finding that Mother was not presently willing and able to provide
a safe family home even with the assistance of a service plan,
nor would she be in the reasonably foreseeable future.3 In re
Doe, 95 Hawai#i at 190, 20 P.3d at 623.
Father
Father raises specific arguments challenging several
FOFs and COLs,4 and contends that they concern "three overarching
errors," i.e., that the Family Court erroneously found that: (1)
the Permanent Plan was in the Children's best interest despite
that it was out-of-date and contained many errors; (2) the DHS's
"6 month break from actively engaging in reunification efforts"
constituted "reasonable efforts;" and (3) that terminating
3
We decline to address the individual FOFs and COLs Mother
challenges as she fails to present argument on each. See Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not argued may be deemed
waived.").
4
Father specifically challenges FOFs 9, 28, 41, 46, 47, 51-53, 56-
60, 62, 63, and COLs 3, 10-13.
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parental rights with a proposed adoption by Aunt, rather than
granting time to explore possible adoption by Uncle, was in the
Children's best interests.
Permanent Plan challenges
We address Father's first and third arguments together,
as both contend the Permanent Plan was not in the Children's best
interest. Specifically, Father first contends that the Permanent
Plan: had not been updated since April 21, 2020, and it
indicated that the Children would "maintain relative placement"
despite the proposed permanent placement changing from a relative
by marriage to a non-relative, as a result of Aunt and Uncle's
divorce; it did not acknowledge the bond between the Children and
Uncle, despite Uncle and Parents collectively expressing their
desire for Uncle to be the adoptive parent; it failed to
acknowledge that the family dynamic changed as a result of the
divorce because the Children moved into a new apartment with Aunt
and Uncle was no longer in the home; and it contained other
outdated information and was not fully revised to indicate that
it was a final, rather than initial, permanent plan. Father also
argues that he had a right to consent to adoption, and that the
Permanent Plan's outdated information shows that the DHS ignored
Father's requests to pursue adoption by Uncle and instead only
sought termination of his parental rights. Father finally
contends that terminating parental rights with a proposed
adoption by Aunt rather than granting time to explore possible
adoption by Uncle, was not in the Children's best interests,
specifically, because Parents have the statutory right to consent
to adoption, and the option of adoption by Uncle "must be fully
explored by DHS and included in a proposed permanent plan."
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Related to these contentions, Father challenges FOF 28,5 COLs 12
and 13.6
To grant a motion to terminate parental rights, the
Family Court must find, inter alia, that "there exists clear and
convincing evidence" that the proposed permanent plan is in the
Children's best interest. HRS § 587A-33(a)(3). The subsection
further provides:
In reaching this determination, the court shall:
(A) Presume that it is in the best interests of
the child to be promptly and permanently placed with
responsible and competent substitute parents and
family in a safe and secure home; and
(B) Give greater weight to the presumption that
the permanent plan is in the child's best interest,
the younger the child is upon the child's date of
entry into foster care . . . .
Id. (Emphases added).
FOF 28 was not clearly erroneous in its finding that
the Children remained in the same "special licensed foster home"
5
FOF 28 provides:
28. Since November 25, 2017, the Children have been in the
same special licensed foster home, with a resource caregiver who
is committed to being a permanent placement for the Child. The
Children's maternal uncle had resided in the special licensed
foster home at the inception of this case and had previously been
a special licensed resource care giver for the Children. However,
the Children's maternal uncle and the current resource caregiver
were divorced on August 4, 2020, and the material needs [sic] is
no longer a special licensed resource care giver. Based upon the
length of time the Children have been in Foster Custody, and based
upon the bond that the [C]hildren have with the current resource
care giver, it is not in the best interests of the [C]hildren to
continue this case any further to explore placement options with
[C]hildren's maternal uncle.
(Emphases added).
6
COLs 12 and 13 provide:
12. Having made Conclusions of Law pertaining to
"parental unfitness" pursuant to HRS § 587A-33(a)(1) and
(2), the Court makes the following Conclusion of Law
regarding the proposed Permanent Plan pursuant to HRS §§
587A-33(a)(3).
13. The Permanent Plan dated April 21, 2020, is in
the best interests of the Children.
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with Aunt, who was the "current resource caregiver" at the time
of trial. This fact is supported by the GAL's July 6, 2020
report, which indicates that Aunt, the Children, and Aunt's own
children moved to a new apartment in December 2019, and Uncle
moved to Makaha. The April 21, 2020 Permanent Plan and the April
21, 2020 Safe Family Home Plan indicate that the assessment of
the "[s]afety of Child's placement completed 2/19/20 and no
safety concerns are indicated," thus reflecting that the DHS
found Aunt's home to be safe for the children. During trial, the
DSH Social Worker testified that the Children lived in this home
and that Uncle moved out of the apartment in January or February
of 2020. FOF 28 noted the pending divorce, the fact that Uncle
had moved out of the home, that Uncle was no longer a licensed
caregiver, and Aunt was the current caregiver. Though FOF 28
contained the following typographical error: "the material needs
is no longer a special licensed resource care giver," it appears
from the context that it was supposed to state that "maternal
uncle" is no longer a special licensed resource caregiver.
(Emphasis added). We reject Father's challenge to this
typographical error as it does not affect Father's substantial
rights. See Hawai#i Family Court Rules (HFCR) Rule 61 ("The
court at every stage of the proceeding must disregard any error
or defect in the proceeding that does not affect the substantial
rights of the parties."). FOF 28 was supported by substantial
evidence and was not clearly erroneous.
Father challenges COLs 12 and 13 because the Permanent
Plan contained multiple errors and omissions, had not been
updated for over six months, and had the goal of adoption by a
"Maternal Aunt" when Aunt was no longer related due to the
divorce. The record shows, however, that the Permanent Plan
expressly contemplated Aunt and Uncle's pending divorce, the fact
that Uncle had moved out of the home, and the possibility of
adoption by Uncle; specifically, it noted:
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Resource Caregivers [Aunt and Uncle] are
currently going through a divorce. The [C]hildren
have remained in the Honolulu area with [Aunt] while
[Uncle] has moved to the Waianae area. [Uncle] has
expressed his desire to have the [C]hildren move with
him. However, [Uncle] has not demonstrated stability
for the [C]hildren. His living situation and his
finances are unstable and he does not have a driver's
license to take the [C]hildren to all of their
appointments. It has been reported that [Uncle] owes
a substantial amount of back child support which is
why he is unable to get a driver's license. The DHS
has made the decision for the [C]hildren to continue
to reside with [Aunt]. The [C]hildren are very bonded
to [Aunt] and it appears that their needs are being
met. [Aunt] has expressed her willingness to adopt
[the Children].
(Emphasis added). The DHS Social Worker testified that, after
drafting the Permanent Plan, she looked into the possibility of
adoption by Uncle, per his request, and she sent him a packet of
materials to fill out and confirmed he received it, but Uncle
thereafter failed to respond. Thus, the record indicates that
the DHS did in fact explore a possible adoption by Uncle, but it
could not further pursue that option due to Uncle's lack of
follow through.
The Permanent Plan was also consistent with the
statutory presumptions in HRS § 587A-33(a)(3)(A) and (B), which,
respectively, "[p]resume 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 "[g]ive 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 . . . ."
(Emphases added). Here, Daughter entered into foster care when
she was less than one-week old and Son entered foster care when
he was just over a year old, and the Children had been in foster
care for nearly three years by the time of trial. See FOFs 23-
26. Given their age of entry into foster care and their length
of time in foster care, specifically that they had been under
Aunt's care for the entirety of the case, the Family Court may
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presume that the proposed adoption by the Aunt as indicated in
the Permanent Plan was in their best interest. HRS § 587A-
33(a)(3)(B). Therefore, the Family Court's conclusions in COLs
12 and 13, that the Permanent Plan was in the Children's best
interest, were not wrong. See Doe, 95 Hawai#i at 190, 20 P.3d at
623.
Father's argument that he had the right to consent to
adoption lacks merit. Father relies on HRS § 587A-15(c)(2)
(2018), which provides:
Unless otherwise provided in this section or as
otherwise ordered by the court, a child's family shall
retain the following rights and responsibilities after
a transfer of temporary foster custody or foster
custody . . . .
. . . .
(2) The right to consent to adoption . . . .
(Emphasis added). Father also cites to the concurrence in In re
AS, 132 Hawai#i 368, 390, 322 P.3d 263, 285 (2014) (Acoba, J.,
concurring), for the proposition that "Kinship, as exemplified in
the statutes, is an anchoring proposition in the sea of
circumstances considered in the decision as to adoption, legal
guardianship or permanent custody," and argues that the Family
Court may weigh kinship as a "substantial factor" in considering
permanent placement. Under HRS § 587A-15(c)(2), however, parents
only retain the right to consent to adoption while the child is
still in foster custody. See HRS § 587A-15(c) ("[A] child's
family shall retain the [right to consent to adoption] after a
transfer of temporary foster custody or foster custody[.]") and
(d) ("If an authorized agency has permanent custody, it has the
following duties and rights: . . . . (7) Providing consent to
adoption . . . .); see, e.g., Matter of QH, No. CAAP-XX-XXXXXXX,
2021 WL 1943258, at *2 (Haw. App. May 14, 2021) (SDO) (holding
that the father "only retained the right" under HRS §
587A-15(c)(2) to consent or withhold consent for a child's major
medical treatment "while [the child] was in foster custody").
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While a Family Court may consider kinship in determining a
child's best interests for a permanent placement, the In re AS
majority held that no relative preference exists with regard to
permanent placements. 132 Hawai#i at 383, 322 P.3d at 278.
Thus, Father presents no authority supporting his assertion that
a parent retains the right to consent to an adoption that occurs
after the Family Court terminates parental rights and awards
permanent custody to the DHS.
"6 Month Break" challenge
Father's second argument challenges FOFs 47, 56-60, and
62,7 contending that the Family Court erred in finding that the
7
FOFs 47, 56-60, and 62 provide:
47. Father's lack of progress in addressing the problems
that necessitated the Children's removal in November of 2017,
in spite of the opportunity to do so over the preceding 35
months shows that Father will not become willing and able to
provide a safe family home for the Children within the
reasonably foreseeable future, even with the assistance of a
service plan.
. . . .
56. Under the circumstances presented by this
case, the DHS has exerted reasonable and active
efforts to reunify the Children with Mother and Father
by identifying necessary, appropriate, and reasonable
services to address the identified safety issues, and
making appropriate and timely referrals for these
services.
57. Under the circumstances presented by the
instant case, the DHS gave Mother and Father every
reasonable opportunity to succeed in remedying the
problems which put the Children at substantial risk of
being harmed in the family home and to reunify with
the Children.
58. Under the circumstances presented in this case,
the DHS treated Mother and Father fairly and serviced the
entire family intensely since the start of the DHS and Court
intervention with this family.
59. The DHS actively encouraged Mother and Father to
participate in necessary and reasonable services to allow
them to reunify with the Child [sic].
60. None of the underlying facts and data upon which the
DHS based its opinions, assessments and recommendations
(continued...)
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DHS's "6 month break from actively engaging in reunification
efforts" from April 2020 until the October 2020 trial constituted
"reasonable efforts." Father claims that the DHS failed to refer
any services during this time frame, and he thus had no
opportunity to participate in services. The DHS Social Worker,
however, testified that she attempted to contact Parents
"monthly" but when she called, they did not answer and "that's
just how they've been throughout the duration of the case."
While the DHS must provide parents a reasonable opportunity for
reunification through a service plan, "a claim for additional
services and accommodations must be timely made," and there is no
"cognizable procedural complaint" when a request for services is
not made until trial. In re Doe, 100 Hawai#i at 343-44, 60 P.3d
at 293-94. Here, Father does not contend that he requested any
additional services after April 2020, and nothing in the record
indicates that he raised the issue at any time prior to trial.
Under "such circumstances," we "cannot hold that [Father] has any
cognizable procedural complaint." Id. at 344, 60 P.3d at 294.
Father's complaint regarding this six-month time frame
from April to October 2020, also lacks merit because the
reasonable statutory time frame of two years to address Father's
safety issues to provide a safe family home for the Children, had
already been exceeded. See HRS 587A-33(a)(2). "[N]othing in HRS
chapter 587 or in its legislative history . . . indicates that
DHS must engage in attempts at reunification for a [particular]
7
(...continued)
were shown to be unreliable or untrustworthy. The DHS'
continuing assessments in the case were conducted in an
appropriate manner.
. . . .
62. During the pendency of this case neither Mother nor
Father requested referrals for services from the DHS nor
did they object to the Court's findings that the DHS exerted
reasonable efforts to reunify Mother and/or Father with the
Children.
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period . . . before its efforts may be deemed 'reasonable.'" In
re Doe, 100 Hawai#i at 344 n.15, 60 P.3d at 294 n. 15. By April
2020, the Children had been in foster care for more than two
years from their December 1, 2017 entry into foster care.
Remaining FOF and COL challenges
Finally, we address Father's challenges to FOFs 9, 41,
46, 51-53, 63 and COLs 3, 10 and 11.8 As to FOF 9, Father's
argument that there was no evidence presented that he was an "IV
drug" user misstates the finding, which was that Mother had
reported that Father was an IV drug user. This evidence was
contained in the DHS's first Safe Family Home Report, and was
supported by substantial evidence. As to FOF 41, Father disputes
the characterization of his substance abuse as "chronic," and
claims that there was no evidence that his substance use posed a
risk of harm to the Children. This challenge is not meritorious
given that Father stipulated to the Petition; Father's admission
during an assessment that he used methamphetamine for over 15
years; and the entirety of the documented substance abuse history
in this case, which supports the Family Court's use of the term
"chronic" to describe Father's drug use. See HRS §
587A-28(d)(1),(e)(1) (2018); State v. Miyazaki, 64 Haw. 611, 616,
645 P.2d 1340, 1344 (1982).
As to FOF 46, Father argues that the DHS Social
Worker's testimony did not establish that he could not provide a
safe family home with or without the assistance of a service
plan. Father also challenges FOF 63, which found that the DHS
Social Worker was a "credible expert witness . . . whose
testimony was helpful to the court." The Family Court, as the
8
As to FOFs 51-53 and COLs 10-11, Father raises only a sufficiency
of evidence challenge without supporting argument. These challenges are
waived. HRAP Rule 28(b)(7).
We agree that COL 3 was wrong, as it referenced a witness named
"Corinne Ready" who was not involved in this case. We conclude that the error
is inadvertent and harmless, as it did not affect the Family Court's decision
to terminate parental rights. See HFCR Rule 61.
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factfinder, based its finding on the "credible expert testimony"
of the DHS Social Worker, and we do "not pass upon issues
dependent upon the credibility of witnesses and the weight of the
evidence" as this is the province of the factfinder. In re Doe,
95 Hawai#i at 190, 20 P.3d at 623.
Therefore, IT IS HEREBY ORDERED that the Order
Terminating Parental Rights, entered November 9, 2020, in the
Family Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, August 30, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Tae Chin Kim Chief Judge
for Appellant Mother
/s/ Keith K. Hiraoka
Jacob G. Delaplane Associate Judge
for Cross-Appellant Father
/s/ Karen T. Nakasone
Kurt J. Shimamoto Associate Judge
Deputy Attorney General
for Appellee Department of
Human Services
Emily M. Hills
(Legal Aid Society of Hawai#i)
for Guardian Ad Litem
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