In re: AK

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-APR-2022
08:56 AM
Dkt. 51 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF AK

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 20-00183)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and McCullen, JJ.)

Father-Appellant (Father) appeals from the Family Court

of the First Circuit's (Family Court) July 21, 2021 Order

Terminating Parental Rights.1 The parental rights of Father and

Respondent-Appellee Mother (Mother) to their child (AK) were

terminated and Petitioner-Appellee State of Hawai#i, Department

of Human Services (DHS) was awarded permanent custody.

On appeal, Father challenges Findings of Fact (FOF) 81

through 84, and 102.2 Father contends (1) the Family

1
The Honorable Andrew T. Park presided.
2
The challenged FOFs are as follows:

FINDINGS OF FACT

. . . .

81. However, Father has a history of non-compliance
with court-ordered and DHS recommended services starting
(continued...)
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Court erred by ordering DHS to file a motion to terminate

parental rights because there was a compelling reason why it was

not in the best interest of AK to file the motion, (2) DHS did

not provide Father with a reasonable opportunity to reunify with

2
(...continued)
with the case regarding [AK's siblings] in November 2018.
Father continues to engage in his pattern of behavior of
starting but not completing services, especially substance
abuse treatment, relapsing to drug use, not fully engaging
in services, and failing to maintain contact with the DHS.
Based on Father's demonstrated patterns of behaviors, it is
not reasonably foreseeable that Father will become able to
provide a safe family home for the Child in the reasonably
foreseeable future.

82. Even though the DHS was not required to make
reasonable efforts to reunify the Child with Father and to
give Father a reasonable opportunity to reunify with the
Child due to the Court's aggravated circumstances findings
and orders, under the circumstances presented in this case,
Father was given a reasonable opportunity to reunify with
the Child. The DHS was willing to work with Father in his
efforts to reunify with the Child.

[Hawaii Revised Statutes (HRS)] § 587A-33(a)(1) and (2).

The following HRS § 587A-33(a)(1) and (2) findings of
fact regarding [Father] are made by clear and convincing
evidence, as required by HRS § 587A-33(a).

83. Father is not presently willing and able to
provide the Child with a safe family home, even with the
assistance of a service plan.

84. Father is willing but it is not reasonably
foreseeable that Father will become able to provide a safe
family home, even with the assistance of a service plan, in
a reasonable period of time not to exceed two years from the
Child's November 16, 2020 date of entry into foster care.
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.

. . . .

102. Under the circumstances presented by this case,
the DHS has exerted reasonable and active efforts to reunify
Father and Mother with the Child by identifying necessary,
appropriate and reasonable services to address the
identified safety issues/problems, and by making appropriate
and timely referrals for those services, during the period
where the DHS was required to make reasonable efforts, and
even when the DHS was not required to make reasonable
efforts. Any delays in the delivery of services were due to
Father's and Mother's own conduct.

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AK, (3) there was not clear and convincing evidence Father would

not become willing and able to provide a safe family home within

a reasonable period of time, and (4) Mother's right to court-

appointed counsel was violated.

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 Father's points of error as follows:

(1) Father contends the Family Court erred by ordering

DHS to file a motion to terminate parental rights because there

was a compelling reason why it was not in the best interest of AK

to file the motion pursuant to HRS § 587A-28(e)(4)(B) (2018).3

3
HRS § 587A-28(e)(4) provides:

(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:

. . . .

(4) Shall determine whether aggravated circumstances are
present.

(A) If aggravated circumstances are present, the
court shall:

(i) Conduct a permanency hearing within thirty
days, and the department shall not be
required to provide the child's parents
with an interim service plan or interim
visitation; and

(ii) Order the department to file, within sixty
days after the court's finding that
aggravated circumstances are present, a
motion to terminate parental rights unless
the department has documented in the safe
family home factors or other written
report submitted to the court a compelling
reason why it is not in the best interest
of the child to file a motion.
(continued...)

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To support this contention, Father first argues that a

November 12, 2020 Safe Family Home Report "clearly stated there

exist [sic] a compelling reason why it is not in the child's best

interest to file a motion to terminate parental rights." Father

cites two portions of the report that stated (1) Mother appeared

bonded to AK before being discharged from the hospital after

giving birth, and (2) DHS has not yet made reasonable efforts to

locate, engage, or provide services to parents. Because Father

did not assert below that bonding with Mother was a compelling

reason to not file a motion to terminate parental rights,

Father's claim related to bonding with Mother is waived on

appeal. Hawai#i Rules of Appellate Procedure (HRAP)

Rule 28(b)(4). Moreover, by the time of a hearing on January 19,

2021, when the Family Court determined there were aggravating

circumstances4 and that there was no compelling reason not to

file a motion to terminate parental rights, DHS had located

parents and engaged with them to provide services. Specifically,

the Family Court's orders on November 16, 2020, and November 27,

2020, reflect that Mother and Father each attended a court

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(...continued)
(B) If aggravated circumstances are not present or
there is a compelling reason why it is not in
the best interest of the child to file a motion
to terminate parental rights, the court shall
order that the department make reasonable
efforts to reunify the child with the child's
parents and order an appropriate service plan[.]
4
At the hearing on January 19, 2021, the Family Court found that
aggravated circumstances, as defined in HRS § 587A-4, existed in this case
because the parents' rights regarding siblings of AK had been judicially
terminated in a prior case. FOF 37.

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hearing and were ordered to follow a service plan dated

November 12, 2020.

Father next argues that HRS § 587A-28(e)(4)(A)(ii) does

not give the Family Court discretion to not accept DHS's position

regarding whether there is a compelling interest to not file a

motion to terminate parental rights. We reject Father's argument

because, under HRS § 587A-28(e)(4)(A)(ii), once the Family Court

determines aggravated circumstances exist, it must then make its

own best interest determination as to whether DHS "has documented

in the safe family home factors or other written report submitted

to the court a compelling reason why it is not in the best

interest of the child to file a motion." Cf. In re AS, 132

Hawai#i 368, 377, 322 P.3d 263, 272 (2014) (the family court is

authorized and required to make its own best interest of the

child determination even where DHS has the duty and right to

determine where a child shall live for placement purposes as the

permanent custodian). In other words, it is the Family Court's

duty to determine whether a compelling reason was documented.

Father also claims that after ordering DHS to file a

motion to terminate parental rights on January 19, 2021, the

Family Court was uncertain whether compelling reasons existed and

may have wanted to hold an evidentiary hearing. Specifically,

Father claims the Family Court ordered DHS to submit another

report to address the issue of whether compelling reasons existed

because DHS previously objected to filing a motion to terminate

parental rights. Father mischaracterizes the proceeding. DHS

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inquired whether the Family Court still wanted "the department

and possibly the GAL to set forth any compelling reasons why the

goal should be reunification at – for that permanency hearing"

because DHS noted reunification could still be ordered as part of

concurrent planning despite a finding of aggravated circumstances

due to HRS chapter 587A being silent on the issue of concurrent

planning. The Family Court responded that it should be included

in the next reports. Documentation to justify reunification

under concurrent planning is not related to whether there is a

compelling reason not to file a motion to terminate parental

rights after finding an aggravated circumstance under HRS § 587A-

28(e).

Lastly, Father relies on a February 9, 2021 Safe Family

Home Report, which indicated AK was bonded to Father and "stated

that compelling reasons to waive the requirement to file a motion

for termination of parental rights do not apply because the child

had not been in care for 10 months." However, during a

February 18, 2021 hearing, DHS stated that the February 9, 2021

Safe Family Home Report did not find any compelling reason not to

file a motion to terminate parental rights, and asked for a

finding that the Family Court confirm its January 19, 2021 ruling

that there was no compelling reason not to file a motion to

terminate parental rights. Father stated he had no position on

DHS's requested findings. Thus, the February 9, 2021 report does

not support Father's contention, and Father's assertion was

nonetheless waived. HRAP Rule 28(b)(4).

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(2) Father claims DHS failed to provide him with a

reasonable opportunity to reunify with AK because the Family

Court erred by ordering DHS to file a motion to terminate

parental rights within 60 days pursuant to HRS § 587A-28(e)(4).

Father claims DHS did not provide reasonable services because it

was under an incorrect assumption the Family Court found no

compelling reason why it was not in AK's best interest to file a

motion to terminate Father's parental rights. As discussed

above, the Family Court did not err by ordering DHS to file a

motion to terminate parental rights within 60 days pursuant to

HRS § 587A-28(e)(4)(A)(ii). Therefore, DHS was not under an

incorrect assumption.

(3) Father contends that the Family Court abused its

discretion when it found there was clear and convincing evidence

he would not become willing and able to provide a safe family

home within a reasonable period of time. Father highlights his

participation in drug treatment and parenting classes, and his

bonding with AK; he notes he was afforded only eight months, far

less than the statutory two-year or purported 15-month periods.5

The Family Court shall determine whether there exists

clear and convincing evidence it is not reasonably foreseeable a

parent will become willing and able to provide 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

5
It is unclear what statutory 15-month period Father refers to because
no citation to any statutory authority was provided.

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the child's date of entry into foster care.6 HRS § 587A-33(a)(2)

(2018). Two years is the maximum, not minimum, amount of time

within which a parent must become willing and able to provide a

safe family home. In re MP, 144 Hawai#i 157, 438 P.3d 289,

No. CAAP-XX-XXXXXXX, 2019 WL 1614717 at *2 (App. April 16, 2019)

(SDO). A parent's history of compliance or noncompliance with

prior court-ordered service plans is relevant and probative of a

parent's capacity to provide a safe family home and the

reasonable foreseeability that a parent will become willing and

able to provide a safe family home within a reasonable period of

time. In re Doe, 95 Hawai#i 183, 196, 20 P.3d 616, 629 (2001).

Father previously attempted to participate in services

to address his problems and safety issues, which resulted in

termination of his parental rights to AK's older siblings in

August 2020. FOF 7-9, 12, 15, 68. A July 2020 psychological

evaluation determined "Father suffered from Stimulant Use

Disorder, Amphetamine Type, Severe, Early Remission and Cannabis

Use Disorder, Severe, Early Remission," and he minimized his drug

use. FOF 69. The evaluation also found that Father's prognosis

would improve with twelve months of sobriety. FOF 69. Father

entered intensive outpatient treatment but was terminated for

non-compliance in March 2021 after 14 days and, thus, did not

successfully complete the program. FOF 71.

6
Due to the Family Court finding an aggravated circumstance and that
DHS should file a motion to terminate parental rights without a concurrent
plan of reunification, the Family Court was not required to order a service
plan be implemented but did allow Father to voluntarily comply with a service
plan, dated November 12, 2020.

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At the time of trial, in July 2021, Father was

participating in another intensive outpatient treatment program

but had not yet completed it. FOF 72. Father admitted to

continuing to consume alcoholic beverages despite knowing it was

against the recommendations for drug treatment because it could

lead to use of illicit substances. FOF 73. Father also admitted

to relapsing into drug use during the pendency of this case by

using cocaine and methamphetamines. FOF 74.

Thus, the record contains substantial evidence

supporting the Family Court's findings that Father continued to

engage in a pattern of behavior such as starting but not

completing services, especially substance abuse treatment,

relapsing to drug use, and not fully engaging in services. Thus,

the Family Court did not clearly err by finding, based on

Father's demonstrated patterns of behavior, that there was clear

and convincing evidence it was not reasonably foreseeable that

Father would become able to provide a safe family home within a

reasonably foreseeable future. FOF 81.7

(4) Father claims Mother's right to counsel was

violated. However, Father lacks standing to enforce Mother's

parental rights. In re HK, 142 Hawai#i 486, 421 P.3d 694,

Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2018 WL 3201647 at *2

7
Although Father challenges FOF 81, he provided no specific argument
as to why it was clearly erroneous, and it is supported by the evidence in the
record.

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n.3 (App. June 29, 2018) (SDO) (father lacked standing to enforce

mother's parental rights) (citation omitted).

Therefore, IT IS HEREBY ORDERED that the Order

Terminating Parental Rights, entered on July 21, 2021, in the

Family Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, April 18, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Herbert Y. Hamada,
for Father-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Patrick A. Pascual
Julio C. Herrera /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
for Petitioner-Appellee,
Department of Human Services.

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