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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-OCT-2021
08:19 AM
Dkt. 78 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF LC, AC, IC, AND DG
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-S NOS. 20-1-0022, 20-1-0023, 20-1-0024 and 20-1-0025 )
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Appellant Mother (Mother) appeals from the Order
Establishing Jurisdiction, Revoking Temporary Foster Custody,
Granting Foster Custody, filed on November 4, 2020, in FC-S Nos.
20-1-0022, 20-1-0023, 20-1-0024, and 20-1-0025, by the Family
Court of the Second Circuit (Family Court).1 The Family Court
awarded Petitioner-Appellee the State of Hawai#i, Department of
Human Services (DHS) foster custody of Mother's children, LC, AC,
IC, and DG (collectively Children).2 On February 12, 2021, the
Family Court filed its Written Findings of Fact, Conclusions of
Law, Decisions and Orders Following Contested Jurisdictional
Evidentiary Hearing on October 30, 2020 (FOFs and COLs).
On appeal, Mother contends she was denied due process
of law, and the Family Court erred by: (1) not granting Mother's
March 10, 2020 oral motion for an order that the DHS provide
1
The Honorable Adrianne N. Heely presided.
2
At the time of this proceeding, LC was 14 years old, AC was 11
years old, IC was 7 years old, and DG was a 4-month-old infant.
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police reports it had regarding the case and regarding testing of
alleged drug paraphernalia found in Mother's residence; and
denying her motion to strike allegations in the DHS's temporary
custody petition and Safe Family Home Report that accused Mother
of having a drug pipe, baggies with drug residue, or drug
paraphernalia because the DHS did not have any testing that would
result in a finding of methamphetamine; (2) denying Mother's
Motion in Limine (MIL)/Motion to Dismiss (MTD) where the DHS
"failed to conduct any independent investigation" into reports of
concern discussed at a February 5, 2020 meeting at the Ka Hale A
Ke Ola Homeless Resource Center (KHAKO shelter); and removal of
the Children shortly thereafter because there was no non-hearsay
evidence of drug use, any evidence that drugs were found, or that
items characterized as drug paraphernalia were shown to be drug
items; and where the DHS failed to provide legible discovery of
police reports in its possession that the DHS referred to and
relied upon to support the allegations set forth in its petition
and Safe Family Home Reports; (3) establishing jurisdiction and
awarding foster custody to the DHS because the DHS failed to
properly investigate before removing the Children, relied upon
hearsay and uninvestigated KHAKO shelter reports, and failed to
provide Mother with fair and meaningful access to police reports
in the DHS's possession which the DHS relied upon to remove the
Children and assert jurisdiction.3 Mother challenges the Family
Court's entry of Findings of Fact (FOF) 10, 23, 27-28, 30, 32,
34, and 35,4 as clearly erroneous; and Mother also argues that
Conclusions of Law (COL) 3-5, and Orders 2 and 3, were wrong.5
3
In the discussion infra, we have reorganized and consolidated
Mother's points of error for clarity.
4
Because several FOFs are misnumbered or use duplicate numbers, the
FOFs have been renumbered to align with Mother's points of error and arguments
in her Opening Brief.
5
Mother challenges the following FOFs, COLs, and Orders:
FINDINGS OF FACT
(continued...)
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5
(...continued)
. . . .
10. Upon completion of its investigation, on
February 10, 2020 DHS filed a Petition for Temporary
Foster Custody for the children.
. . . .
23. On February 4, 2020, DHS Social Worker Leslie
Armstrong was a social worker and supervisor with
the Maui DHS/CWS and on that day SW Armstrong
received an email from Ka Hale A Ke Ola ("KHAKO")
Executive Director Monique Yamashita ("Yamashita")
seeking a meeting at KAAKO [sic] conference room for
February 5, 2020 because there were concerns about
[Mother] ("Mother") and Mother's four children
residing at KHAKO after KHAKO tenants have reported
using drugs with Mother and the number of Notices of
Concerns provided to Mother and Mother failing to
adhere to KHAKO's requests to take corrective action.
. . . .
27. DHS Social Worker and Mother also testified
that KHAKO staff claimed that the search of Mother's
unit on February 3, 2020 resulting in the finding of
a small glass pipe and two small empty melted plastic
bags Mother found in her back room with the notes
from the guest she invited in; testimony was also
received that no larger plastic bag one-third full of
methamphetamine which the other unidentified tenant
alleged was in Mother's unit was found in Mother's
unit.
28. DHS Social Worker testified that she requested
of Mother to take a urinalysis to avoid removal of her
children; and Mother refused.
. . . .
[30]. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts
to avoid foster placement of the Children.
. . . .
[32]. None of the underlying facts and data upon which
the DHS based its opinions, assessments and
recommendations were shown to be untrustworthy. The
DHS investigations and continuing assessment in the
instant case were conducted in an appropriate
manner, and pursuant to [Hawaii Revised Statutes
(HRS)] Chapter 578A [sic], H.R.S. §587A-2; 587A-7;
587A-4, 587A-5; 587A-8; and 587A-11.
. . . .
[34]. Prior to placement of the Children out of the
(continued...)
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5
(...continued)
family home, the DHS made reasonable efforts to
prevent or eliminate the need to remove the Children
from the Children's family.
[35]. It is contrary to the immediate welfare of the
Children to remain in the family home.
. . . .
CONCLUSIONS OF LAW
. . . .
3. The Children's physical or psychological health
or welfare have been harmed or are subject to
threatened harm by the acts or omissions of the
Children's Mother.
4. Mother is not willing and able to provide the
Children with a safe family home even with the
assistance of a service plan.
5. Pursuant to the Hawaii Revised Statutes section
587A-28/587A-5 and the reports submitted pursuant the
[sic] Hawaii Revised Statutes 587A-7 and 587A-18 and
the record therein, there is an adequate basis to
sustain the petition in that the Children whose
physical or psychological health or welfare has been
harmed or is subject to threatened harm by the acts or
omissions of the child's family; to wit the threat of
neglect.
. . . .
ORDERS
. . . .
2. The court further orders that the Petition for
Temporary Foster Custody filed herein on February 10,
2020 is granted, finding that the Department has met
its burden of establishing jurisdiction; thereby the
court revokes temporary foster custody; sets a Return
with Service Plan hearing; and
3. Further finding pursuant to H.R.S. §587A-28/587A-5 and
the report(s) submitted pursuant to H.R.S. § 587A-7
and 587A-18 and the records therein, there is an
adequate basis to sustain the Petition in that the
children are in children [sic] whose physical or
psychological health or welfare has been harmed or is
subject to threatened harm by the acts and omissions
of the child's family, specifically Mother on the
basis of Mother's Neglect; and father has not
participated in this case and this court has not
received evidence of any of the child/ren's father's
providing a safe family home environment for the
children.
(continued...)
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Upon careful review of the record and the briefs
submitted by the parties6 and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Mother's contentions as follows, and affirm.
The pertinent background is as follows. On February 5,
2020, the DHS received reports of allegations of Mother smoking
crystal methamphetamine in her unit at the KHAKO shelter with her
children present, and that the living conditions within Mother's
unit were dangerous and a likely fire hazard. DHS Social Worker
Leslie Armstrong (Armstrong) attended a meeting at the KHAKO
shelter with KHAKO staff, and was shown pictures of Mother's unit
and heard concerns regarding the safety and welfare of Mother's
children, including the unit's lack of cleanliness and posing a
fire hazard; drug usage and paraphernalia in the unit; piles of
clothing and trash throughout the unit; the baby's car seat
against the wall on a bed so the baby would not fall off the bed
while sleeping; and Mother's violation of house rules including
noncompliance with curfew, having uninvited guests, and reports
of drug selling and drug use activity in and around Mother's
unit.
That same day, February 5, 2020, the DHS called Maui
Police Department (MPD) police for assistance with taking
protective custody of the Children and placing them in the DHS's
protective custody, pursuant to HRS § 587A-11(1) (2018). Mother
attempted to impede their entrance, screaming and yelling,
resulting in the police having to restrain and handcuff Mother to
obtain entry. When Armstrong entered the home, she saw dishes
piled up in the kitchen, trash scattered all over the floor, the
crib completely filled with belongings, and no clean space for
5
(...continued)
(Footnotes omitted).
6
Mother's Counsel is cautioned to adhere to the font requirements
of Hawai#i Rules of Appellate Procedure (HRAP) Rule 32(b), which requires that
footnotes use the same font size as the text, i.e., 12-point font. The
Opening Brief did not comply with this requirement.
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the Children to sleep.7 After completing its investigation and
removal of the Children, on February 10, 2020, the DHS filed a
Petition for Temporary Custody for the Children, pursuant to HRS
§ 587A-11(8). The DHS's petition alleged a number of safety
issues, including (1) the hazardous living condition of the
family home; (2) the presence of "drug paraphernalia, and empty
pill bottles scattered about the unit," and (3) the educational
neglect of three of the children.8 At the conclusion of the
contested jurisdiction hearing on October 30, 2020, the Family
Court invoked its jurisdiction, revoked temporary foster custody,
and awarded foster custody of the Children to the DHS, finding
the DHS met its burden of proving by a preponderance of the
evidence that the Children's health or welfare was harmed or
subject to threatened harm or neglect by Mother.
The DHS investigation
Mother contends the DHS failed to conduct an
investigation, or to conduct an adequate investigation, and
relied on "hearsay" allegations against her before removing the
Children; and thus, the Family Court erroneously decided her
MIL/MTD in this regard. Mother also challenges FOFs 10, [32] and
[35], which all concern the DHS investigation. Mother's
contentions are without merit.
"The granting or denying of a motion in limine is
reviewed for abuse of discretion." Kobashigawa v. Silva, 129
Hawai#i 313, 320, 300 P.3d 579, 586 (2013) (citation omitted).
"A trial court's ruling on a motion to dismiss is reviewed de
novo." Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i
92, 104, 176 P.3d 91, 103 (2008) (citation omitted) (italics in
original). Regarding the challenged FOFs:
7
Photographs documenting the state of the home were attached to the
Safe Family Home Report filed February 10, 2020, and the photographs were also
admitted into evidence at the contested jurisdiction hearing on October 30,
2020.
8
The DHS's petition stated that IC and AC's school was "filing a
truancy petition" because the two children had missed 14 days of school for
that quarter; and that LC's intermediate school "may be filing a truancy
petition as well" because Mother had not officially contacted the Department
of Education informing them she had removed LC to be "home schooled."
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[t]he 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.
In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001)
(citations, quotation marks, and ellipsis omitted).
On February 5, 2020, the DHS received a report that the
Children were subject to harm or threatened harm when Armstrong
spoke with the KHAKO Executive Director about concerns regarding
Mother's alleged drug use, the unsanitary condition of the home,
that the children were not regularly attending school, and
general neglect. Such allegations warranted that the DHS
initiate an investigation.
The DHS conducted an investigation pursuant to HRS §
587A-11 (2018), which provides:
Upon receiving a report that a child is subject to imminent
harm, has been harmed, or is subject to threatened harm, and
when an assessment is required by this chapter, the
department shall cause such investigation to be made as it
deems to be appropriate. In conducting the investigation,
the department may:
(1) Enlist the cooperation and assistance of
appropriate state and federal law enforcement authorities,
who may conduct an investigation and, if an investigation is
conducted, shall provide the department with all preliminary
findings, including the results of a criminal history record
check of an alleged perpetrator of harm or threatened harm
to the child;
. . . .
(8) File a petition or ensure that a petition is
filed by another appropriate authorized agency in court
under this chapter.
(Emphasis added). HRS § 587A-11 does not prohibit an
investigation based upon hearsay information. In conducting an
investigation, the DHS "shall cause such investigation to be made
as it deems to be appropriate[,]" and the DHS was authorized to
immediately assume temporary foster custody of the children and
file a petition with the court within three days after assuming
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such custody when conducting an investigation, not only upon the
completion of an investigation. See HRS § 587A-11.
Armstrong did not immediately assume temporary foster
custody of the Children solely based upon a report of harm or
threatened harm to the Children, however. The record indicates
Armstrong began her investigation by contacting the MPD to assist
in determining whether police protective custody was necessary.
In her testimony, Armstrong described Mother's unit as
unsanitary, and "definitely not clean in any form or fashion."
Armstrong personally observed belongings piled up in every space
in the unit, along with trash and other garbage. Armstrong's
observations were similar to the pictures she had been shown
during her meeting with KHAKO shelter staff: the kitchen had
dishes piled up with seemingly both clean and dirty dishes, there
was trash on the floor instead of being placed in a receptacle,
and a baby crib was filled with belongings. Armstrong also
interviewed each child, except for DG due to the child's age.
One of the pictures Armstrong viewed was of a glass pipe with a
bulbous end, which she characterized as drug paraphernalia
constituting a safety concern because the Children had access to
it; and the presence of the pipe also led her to believe drugs
had been used in the unit. Armstrong and the MPD police officers
agreed that the living conditions in the unit were unsanitary,
and not appropriate for the Children. Two of the children were
then taken into MPD protective custody at the unit, and the other
two children were taken into custody at their school.
In this case, Armstrong was a social worker and
supervisor with the DHS who signed the Petition for Foster
Custody, the Safe Family Home Report, and the Supplemental Safe
Family Home Report; and Armstrong was qualified, pursuant to HRS
§ 587A-19 (2018),9 to be an expert in child protective or child
9
HRS § 587A-19 provides:
[§587A-19] Testimony by department social worker. A person
employed by the department as a social worker in the area of
child protective services or child welfare services shall be
presumed to be qualified to testify as an expert on child
(continued...)
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welfare services. As such, it was not improper for Armstrong to
rely upon and testify about the hearsay allegations against
Mother, and for the Family Court to consider such evidence to the
extent of its probative value, notwithstanding any hearsay
content. See In the Interest of LK, Nos. CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX, 2019 WL 912115 at *2-3 (App. Feb. 25, 2019)
(SDO) (admitting signed Safe Family Home Reports, by social
worker and supervisor, into evidence did not constitute
impermissible hearsay).
Thus, the record reflects that the DHS conducted an
appropriate investigation pursuant to HRS § 587A-11, after
receiving a report of harm or threatened harm that justified
removal of the children. We disagree with Mother's assertions
that the DHS largely based its opinions, assessments and
recommendations on untrustworthy allegations of another KHAKO
shelter tenant. Mother's contention that the DHS's investigation
consisted exclusively of hearsay evidence is not supported by the
record. We conclude that the Family Court did not abuse its
discretion in denying Mother's MIL, nor was the Family Court
wrong for denying the MTD based on Mother's "lack of
investigation" arguments. See Kobashigawa, 129 Hawai#i at 320,
300 P.3d at 586; Kamaka, 117 Hawai#i at 104, 176 P.3d at 103.
FOFs 10, [32], and [35] were supported by substantial evidence,
and were not clearly erroneous. See Doe, 95 Hawai#i at 190, 20
P.3d at 623.
MPD police reports and drug testing
Mother contends she was deprived of due process, and
the Family Court abused its discretion in denying Mother's March
10, 2020 oral motions to order the DHS to provide police reports
and to strike the allegations in the petition and the Safe Family
9
(...continued)
protective or child welfare services. Any party may move
the court to qualify a person employed by the department as
a social worker in the area of child protective services or
child welfare services called to testify as an expert on
child protective or child welfare services.
(Bolding in original).
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Home Reports that Mother had a "drug glass pipe or baggies with
drug residue or drug paraphernalia" where the DHS had no testing
indicating a finding of methamphetamine. This contention is
without merit.
Mother's argument is moot because the Family Court
later granted Mother's request for the police reports on July 24,
2020, which Mother acknowledges in her Opening Brief. Mother
does not provide authority or specific argument to support her
contention that the Family Court erred by not granting her March
10, 2020 oral motion to strike allegations in the DHS's petition
and Safe Family Home Report that accused Mother of having a drug
pipe, baggies with drug residue, or drug paraphernalia, because
the DHS did not have any testing that would result in a finding
of methamphetamine. We do not address this argument. See Rules
Expediting Child Protective Appeals (RECPA) Rule 11(a)(4)
(requiring legal argument on each point of error); HRAP Rule
28(b)(7) ("Points not argued may be deemed waived.").
Mother also claims that she was denied due process
because she was denied "fair and meaningful access to police
reports in DHS possession" pertaining to the drug allegations,
which she raised, inter alia, in the MIL/MTD filed October 26,
2020. The MIL/MTD requested an order in limine preventing the
DHS from referring to, or introducing any evidence of, any
allegations that Mother used drugs with another KHAKO shelter
tenant in Mother's unit on February 2, 2020 because the MPD
police reports provided by the DHS were "so heavily redacted as
to be useless for the purpose of informing Mother of names of
individuals, and date and times of events that are relevant to
supporting or challenging DHS' Petition and for preparing for
trial." Mother did not request an order compelling production of
unredacted police reports by the DHS; thus, this argument has not
been preserved for appeal.
No police reports were admitted into evidence by the
DHS at the contested jurisdictional hearing. Mother admitted
Exhibit Q, Police Report No. 20-004663, into evidence, "not for
substantive use but, again, to depict the obliterated nature of
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pertinent information provided by DHS to Mother in discovery and
the confusing nature of information regarding the drug testing."
Mother did not object to the admission of the DHS's exhibits or
testimony by Armstrong regarding allegations of drug use by
Mother during the contested hearing after the MIL/MTD was denied.
Mother cannot now complain about the admission of the MPD police
report that she admitted into evidence.
Allegations of drug use by Mother made in the DHS's
petition, the February 9, 2020 Safe Family Home Report, and the
Supplemental Safe Family Home Report, were based upon information
Armstrong received from others, or from MPD police reports. The
Safe Family Home Reports were admitted into evidence pursuant to
HRS § 587A-18(d) (2018), which provides, "A written report
submitted pursuant to this section shall be admissible and relied
upon to the extent of its probative value in any proceeding under
this chapter, subject to the right of any party to examine or
cross-examine the preparer of the report." Mother cross-examined
Armstrong, the preparer of the report at the contested hearing in
accordance with HRS § 587A-18. Thus, Mother's contentions
regarding the police reports and drug use allegations are without
merit. The Family Court did not abuse its discretion in denying
the MIL, nor was the Family Court wrong for denying the MTD. See
Kobashigawa, 129 Hawai#i at 320, 300 P.3d at 586; Kamaka, 117
Hawai#i at 104, 176 P.3d at 103.
Mother's challenge to the remaining FOFs, COLs,
and Orders
We address Mother's challenges to FOFs 23, 27-28, [30],
and [34], COLs 3, 4 and 5, and Orders 2 and 3.
A finding that "the child's physical or psychological
health or welfare has been harmed or subject to threatened harm
by the acts or omissions" of a parent requires the Family Court
to exercise its jurisdiction. HRS § 587A-28(e) (2018). Prior to
invoking the Family Court's jurisdiction and awarding foster
custody to the DHS under HRS § 587A-28(e)(3)(A), the Family Court
must find, inter alia, that remaining in the family home is
contrary to the child's welfare, and that the parent is unwilling
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or unable to provide a safe family home for the child, even with
the assistance of a service plan.
As to foster custody of children, the Hawai#i Supreme
Court has stated:
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. Under the
abuse of discretion standard of review, the family court's
decision will not be disturbed 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.
In Interest of Doe, 84 Hawai#i 41, 46, 928 P.2d 883, 888 (1996)
(citations, quotation marks, and brackets 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." In re Doe,
95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001). Unchallenged
findings of fact are binding on appeal. In re Doe, 99 Hawai#i
522, 538, 57 P.3d 447, 463 (2002).
As to FOF 23, Mother contends that it is clearly
erroneous because the KHAKO shelter complaint only alleged a
single tenant, not multiple "tenants," using drugs with Mother.
FOF 23 is clearly erroneous only to the extent it states
"tenants" in the plural, instead of finding only one tenant
alleged using drugs with Mother. There was no evidence that more
than one tenant alleged using drugs with Mother. We conclude
this error is harmless, as there is nothing to suggest that only
one tenant's alleged drug use with Mother, along with the other
allegations, was insufficient to initiate an investigation by the
DHS. See Doe, 95 Hawai#i at 190, 20 P.3d at 623.
As to FOF 27, Mother contends it is clearly erroneous
based on Mother's testimony. Except for Mother's testimony that
she burnt baggies and placed them in a vase in her room, the
Family Court found Mother's remaining testimony not credible.
See FOF 28.10 Therefore, FOF 27 is not clearly erroneous merely
10
The last sentence of the unchallenged second misnumbered FOF 28
states: "The court finds Mother's testimony somewhat credible, as to her
(continued...)
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because Mother's testimony is to the contrary. Mother also
asserts that the "wording" of FOF 27 improperly suggested the
drug paraphernalia was "found together" with notes from Mother's
guest. Mother testified she placed burnt baggies in a vase in
her room. See FOF 28.11 Mother testified her guest wrote notes
in a notebook, and she watched the guest because, "I'm not going
to leave her in my room." Mother's testimony indicates notes
were found in the same room as baggies, which the DHS alleged was
drug paraphernalia. FOF 27 was supported by substantial evidence
and is not clearly erroneous. See Doe, 95 Hawai#i at 190, 20
P.3d at 623.
As to FOF 28, Mother contends it is clearly erroneous
because Mother did not explicitly refuse the urinalysis test.
The record reflects that Mother refused to participate in a
urinalysis test on February 5, 2020, after being asked by
Armstrong to do so. Armstrong testified that Mother responded,
"we'll talk later," regarding Armstrong's request that Mother
participate in a urinalysis. In response to Mother's counsel's
question, "Why did you decline those?" Mother explained that she
declined to do urinalysis testing when ordered by the court and
when offered by Armstrong, because she had one false positive in
the past and it was a violation of her rights. FOF 28 was
supported by substantial evidence and is not clearly erroneous.
See Doe, 95 Hawai#i at 190, 20 P.3d at 623.
We also reject Mother's challenge to FOFs [30] and
[34], which are not clearly erroneous because there was
substantial evidence that the DHS exerted active efforts to avoid
10
(...continued)
burning the baggies and putting it in the vase, but most of her testimony, not
credible." (Emphasis added).
11
The second sentence of the unchallenged second misnumbered FOF 28
states:
Mother testified that she melted the bags when she found
them in [Guest's] [sic] things because she thought they were
baggies that might have something in them, but the burning
made a funny smell and she then left the items in a vase in
her room, the same room that the youngest child sleeps in a
car seat.
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foster placement. As noted in the footnote for FOF [30] and FOF
28, Mother was requested to participate in a urinalysis to avoid
removal of the children, but she refused. Mother was also not
willing or able to listen to any "agreements from the
department," and an uncle who was caring for another of Mother's
children (not one of the Children in this appeal), was unable to
commit to help. Thus, FOFs [30] and [34] were supported by
substantial evidence and are not clearly erroneous. See Doe, 95
Hawai#i at 190, 20 P.3d at 623.
"[W]hen a conclusion of law presents mixed questions of
fact and law, we review it under the 'clearly erroneous' standard
because the court's conclusions are dependent on the facts and
circumstances of each individual case." JW v. RJ, 146 Hawai#i
581, 585, 463 P.3d 1238, 1242 (App. 2020) (citing 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. "[T]he 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." Doe, 95 Hawai#i at
190, 20 P.3d at 623.
COLs 3 and 5, and Orders 2 and 3, are "mixed" findings
and conclusions dealing with the Family Court's ultimate
determination, under HRS 587A-28(e), that the Children were
subject to physical or psychological harm due to Mother's
neglect. See JW, 146 Hawai#i at 585, 463 P.3d at 1242; Doe, 95
Hawai#i at 190, 20 P.3d at 623. The record reflects that the DHS
conducted an appropriate investigation into the allegations, and
did not adopt such allegations wholesale. Even though the DHS
did not substantiate allegations that Mother used drugs with
another tenant, or that Mother possessed methamphetamine, there
was substantial evidence in the record to support the Family
Court's conclusion that the Children were subject to threatened
harm by Mother's acts or omissions due to neglect --
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specifically, unsanitary conditions in the family home,
indisputably depicted in the photographs, as well as the
educational neglect of the Children. The Family Court found
Armstrong credible. Mother also admitted she received a notice
from the KHAKO shelter that she had failed a January 30, 2020
hygiene inspection. Thus, COLs 3 and 5, and Orders 2 and 3 are
not clearly erroneous, and reflect an application of the correct
law under HRS § 587A-28(e). See Doe, 95 Hawai#i at 190, 20 P.3d
at 623.
Finally, Mother did not present any additional argument
challenging COL 4, and simply claims that COL 4 is wrong because
"there is no FOF to the effect that Mother was unable or
unwilling or both to provide the children with a safe home." COL
4 is more properly viewed as a finding of fact supported by
substantial evidence, and it is not clearly erroneous. See
Kilauea Neighborhood Ass'n v. Land Use Comm. of the State of
Hawaii, 7 Haw. App. 227, 229, 751 P.2d 1031, 1034 (1988)
(accuracy of label affixed by agency as a finding of fact or
conclusion of law freely reviewable by the appellate courts).
Therefore, IT IS HEREBY ORDERED that the Order
Establishing Jurisdiction, Revoking Temporary Foster Custody,
Granting Foster Custody, filed on November 4, 2020, in FC-S Nos.
20-1-0022, 20-1-0023, 20-1-0024, and 20-1-0025, by the Family
Court of the Second Circuit, is affirmed.
DATED: Honolulu, Hawaii, October 26, 2021.
On the briefs:
/s/ Keith K. Hiraoka
Davelynn M. Tengan Presiding Judge
for Appellant
/s/ Karen T. Nakasone
Asami M. Williams Associate Judge
Julio C. Herrera
Deputy Attorneys General /s/ Sonja M.P. McCullen
for Appellee Associate Judge
15