NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-FEB-2022
08:10 AM
Dkt. 57 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF H CHILDREN
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 21-00041)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Appellant Mother (Mother) appeals from the Orders
Concerning Child Protective Act (Foster Custody Order), filed on
April 22, 2021, in the Family Court of the First Circuit (Family
Court).1
Mother contends the Family Court erred by granting
Petitioner-Appellee State of Hawai#i, Department of Human
Services (DHS), foster custody of her three children because the
children's physical or psychological health or welfare was not
subject to imminent harm, harm, or threatened harm by the acts or
omissions of the children's family. At the time the Foster
Custody Order was issued, the children were ten, eight, and four
years old, respectively.
On May 26, 2021, the Family Court issued Findings of
Fact and Conclusions of Law in support of its Foster Custody
1
The Honorable John C. Bryant, Jr. presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Order. Mother challenges Findings of Fact (FOF) Nos. 19, 22, 25,
38, 66, and 68, but she does not provide any specific argument as
to why those findings are clearly erroneous.2 Instead, Mother
argues generally that: the Family Court "erred in finding that it
is more probable than not that the three children suffered
substantial impairment in their ability to function or that there
is a foreseeable and substantial risk of harm" by Mother; no
2
The challenged FOFs are as follows:
FINDINGS OF FACT
. . . .
19. Mother did not maintain contact with DHS.
. . . .
22. DHS has a supervised visitation plan for Mother, but
she has refused visits.
. . . .
25. When the children cannot reach Mother by phone or see
her in person, they misunderstand and think the lack
of contact is their fault. The children have
outbursts, cry and are in general distress over their
lack of contact with Mother. The children really miss
Mother and wish she would contact them.
. . . .
38. The DHS tried to work with Mother for a month and a
half to prevent the need for removal of the children
from the family home before filing the Petition on
February 13, 2021. If Mother had given [maternal
aunt] a power of attorney to act as her attorney-in-
fact, the DHS may not have been forced to intervene to
ensure the safety of the children.
. . . .
66. Mother's failure to visit with the children before and
after the DHS' involvement is threatened psychological
harm to the children.
. . . .
68. Mother's failure to stay in contact with [maternal
aunt] and her failure to provide [maternal aunt] with
a Childcare Power of Attorney to act as her attorney-
in-fact to register the children in school and get
them basic medical care is neglect and threatened
neglect to the children.
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expert psychological testimony was presented regarding
psychological harm or threat of harm; there was no evidence of
abuse and neglect, or impairment to the children's ability to
function; and Mother anticipated the children would remain with
maternal aunt only temporarily and Mother did not abandon them.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Mother's points of error as follows and we affirm.
"Generally, the family court possesses wide discretion
in making its decisions and those decision[s] will not be set
aside unless there is a manifest abuse of discretion." Fisher v.
Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006) (citation
omitted). We review the Family Court's findings of fact under
the clearly erroneous standard and its conclusions of law under
the de novo standard. Id.
FOFs 19, 22, 25, and 38: Each of these findings deal
with part of the underlying facts of this case. As noted,
although Mother challenges these findings, she provides no
argument on these findings and does not point to any evidence or
the record to show why these findings are clearly erroneous. We
therefore reject Mother's challenge to these findings.
FOF 66: In FOF 66, the Family Court found that
"Mother's failure to visit with the children before and after the
DHS' involvement is threatened psychological harm to the
children." (emphasis added). FOF 25 sets out the distress the
children experienced because they could not get in contact with
Mother. Based on the record and applicable statutes, and the
broad discretion the Family Court has in these matters, we
conclude FOF 66 is not clearly erroneous.
Hawaii Revised Statutes (HRS) § 587A-28 (2018)
provides, in relevant part:
§587A-28 Return hearing.
. . .
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(d) At the return hearing, the court shall decide:
(1) Whether the child's 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;
(2) Whether the child should be placed in foster custody
or under family supervision; and
(3) What services should be provided to the child's
parents.
(e) If the court finds that the child's 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, the court:
(1) Shall enter a finding that the court has
jurisdiction pursuant to section 587A-5;
(2) Shall enter a finding regarding whether, before the
child was placed in foster care, the department made
reasonable efforts to prevent or eliminate the need to
remove the child from the child's family home;
3) Shall enter orders:
(A) That the child be placed in foster custody if
the court finds that the child's remaining in
the family home is contrary to the welfare of
the child and the child's parents are not
willing and able to provide a safe family home
for the child, even with the assistance of a
service plan; or
(B) That the child be placed in family supervision
if the court finds that the child's parents are
willing and able to provide the child with a
safe family home with the assistance of a
service plan;
(Emphasis added).
Further, HRS Chapter 587A-4 provides applicable
definitions, including:
"Harm" means damage or injury to a child's physical or
psychological health or welfare, where:
(1) The child exhibits evidence of injury, including, but
not limited to:
(A) Substantial or multiple skin bruising;
(B) Substantial external or internal bleeding;
(C) Burn or burns;
(D) Malnutrition;
(E) Failure to thrive;
(F) Soft tissue swelling;
(G) Extreme pain;
(H) Extreme mental distress;
(I) Gross degradation;
(J) Poisoning;
(K) Fracture of any bone;
(L) Subdural hematoma; or
(M) Death;
and the injury is not justifiably explained, or the
history given concerning the condition or death is not
consistent with the degree or type of the condition or
death, or there is evidence that the condition or
death may not be the result of an accident;
. . . .
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(3) The child's psychological well-being has been
injured as evidenced by a substantial impairment
in the child's ability to function;
(4) The child is not provided in a timely manner
with adequate food; clothing; shelter;
supervision; or psychological, physical, or
medical care[.]
HRS § 587A-4 (emphasis added). Moreover, "[t]hreatened harm
means any reasonably foreseeable substantial risk of harm to a
child." HRS § 587A-4 (emphases added).
Here, in FOF 66, the Family Court did not clearly err
in finding "threatened harm," or in other words, that there was
"reasonably foreseeable substantial risk of harm" such as either
extreme mental distress or that the children's psychological
well-being would be injured as evidenced by a substantial
impairment in the children's ability to function. See HRS
§ 587A-4.
Mother does not challenge a number of the Family
Court's findings, and unchallenged findings are binding on this
court. In re Doe, 99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
It is uncontested that in December 2020, Mother and children had
to leave a shelter in Wai#anae when Mother tested positive for
COVID-19, they lived temporarily with children's maternal
grandmother, and then began living with the children's maternal
cousin (referred to as maternal aunt) on December 26, 2020. FOFs
15-16. Although Mother had opportunities to move back into the
Wai#anae shelter and another shelter, she did not take the steps
needed for those opportunities. FOF 17-18. Mother then moved
out of maternal aunt's residence "due to disagreements," left the
children behind, and stopped contacting maternal aunt in January
2021. FOF 20. On February 16, 2021, a police officer assumed
protective custody of the children, protective custody was then
transferred to DHS and DHS assumed temporary foster custody. FOF
40. Proceedings were held in the Family Court on February 23,
2021, March, 22, 2021, and April 21, 2021. FOF 43, 49, 50. As
of the date of trial on DHS' foster custody petition held on
April 21, 2021, Mother had not visited the children in person
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since January 2021; and the children try to call Mother but she
does not answer the phone. FOF 21, 24.
The findings in FOF 25 indicate the effect on the
children due to being unable to reach Mother or to see her in
person. The Family Court found, inter alia, that "[t]he children
have outbursts, cry and are in general distress over their lack
of contact with Mother." FOF 25.
Moreover, Mother failed to provide for schooling or any
medical care for her children. It is uncontested that Mother was
home schooling the children during 2020, but did not follow
through with required testing for the children so they could
advance to the next grade. FOF 30. Mother left the children
with maternal aunt but refused to give maternal aunt power of
attorney or any other authority to care for the children. FOF
31. As of January 2021, the children were not registered in any
school and because she did not have power of attorney to act as
Mother's attorney-in-fact, maternal aunt could not register them
for school. FOF 33-34. Further, without a power of attorney,
maternal aunt could not consent to regular medical and dental
care for the children. FOF 35.
Given this record, FOF 66 is not clearly erroneous.
FOF 68: In FOF 68, the Family Court found that Mother's
failure to be in contact with maternal aunt and to provide
maternal aunt with a power of attorney for the children to
register them in school and provide basic medical care is neglect
and threatened neglect. FOF 68 is not clearly erroneous,
although HRS § 587A-28 does not use the word "neglect."
In any event, Mother does not challenge FOF 65, in
which the Family Court found the children's physical "health or
welfare are subject to imminent harm, has been harmed, or is
subject to threatened harm by the acts or omissions of Mother[.]"
FOF 65. The Family Court did not find any physical abuse, but
harm is also defined as "[t]he child is not provided in a timely
manner with adequate food; clothing; shelter; supervision; or
psychological, physical, or medical care." HRS § 587A-4. In
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this case, the physical welfare of the children was subject to
threatened harm because there was a reasonably foreseeable
substantial risk Mother would not provide adequate supervision,
or physical or medical care.
Given the record, the Family Court did not err by
awarding DHS foster custody based on threatened harm to the
children from Mother's acts or omissions.
Therefore, IT IS HEREBY ORDERED that the "Orders
Concerning Child Protective Act," filed on April 22, 2021, in the
Family Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, February 11, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Herbert Y. Hamada,
for Mother-Appellant /s/ Keith K. Hiraoka
Associate Judge
Gay M. Tanaka,
Julio C. Herrera, /s/ Karen T. Nakasone
Deputies Attorney General, Associate Judge
Department of the Attorney
General, for Appellee
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