NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-OCT-2022
07:46 AM
Dkt. 59 SO
NOS. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
NO. CAAP-XX-XXXXXXX
IN THE INTEREST OF AQ
(FC-S NO. 19-039K)
AND
NO. CAAP-XX-XXXXXXX
IN THE INTEREST OF Q CHILDREN
(FC-S NO. 18-016K)
APPEALS FROM THE FAMILY COURT OF THE THIRD CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Chan, JJ.)
Appellant Mother (Mother) appeals from the Family Court
of the Third Circuit's (family court) October 7, 2021 orders in
FC-S No. 19-0039K and FC-S No. 18-0016K, both entitled "Findings
of Fact; Conclusions of Law; Decision and Order Granting
[Petitioner-Appellee] Department of Human Services' [(DHS)]
Motion for Termination of Parental Rights [Filed November 2,
2020]" (collectively, TPR Orders).1/
Mother contends that the family court erred in
terminating her parental rights over her children, AQ1, AQ2, and
1/
The Honorable Mahilani E.K. Hiatt presided over the consolidated
hearing on DHS's respective motions to terminate parental rights, filed in the
two underlying cases, and entered the TPR Orders. On March 8, 2022, this
court entered an order consolidating appellate case numbers CAAP-XX-XXXXXXX
and CAAP-XX-XXXXXXX under CAAP-XX-XXXXXXX.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
AQ3 (collectively, Children),2/ where: (1) the family court
focused on Mother's inability to comply with the substance abuse
portion of her service plan, and did not fully consider other
factors enumerated in Hawaii Revised Statutes (HRS) § 587A-7; (2)
Mother's substance abuse constituted a disability under § 587A-
7.5; and (3) there was insufficient evidence "that Mother was not
presently willing and able to provide [the C]hildren . . . with a
safe family home."
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 affirm.
I.
Mother's first and third points of error overlap. She
contends that in terminating her parental rights, the family
court focused on her sobriety issues and failed to fully consider
other factors enumerated in HRS § 587A-7.3/ Relatedly, Mother
2/
AQ2 and AQ3 are twins (collectively, Twins). The family court
also terminated the parental rights of AQ1's father and the Twins' father, who
do not appeal from the TPR Orders.
3/
HRS § 587A-7(a) (2018) provides, in relevant part:
(a) The following factors shall be fully considered when
determining whether a child's family is willing and able to
provide the child with a safe family home:
(1) Facts relating to the child's current situation
. . . [;]
(2) The initial and any subsequent reports of harm
and threatened harm to the child;
(3) Dates and reasons for the child's out-of-home
placement; description, appropriateness, and
location of the placement; and who has placement
responsibility;
(4) Facts regarding the alleged perpetrators of harm
to the child, the child's parents, and other
family members who are parties to the court
proceedings . . . [;]
(5) Results of psychiatric, psychological, or
developmental evaluations of the child, the
alleged perpetrators, and other family members
who are parties;
(6) Whether there is a history of abusive or
(continued...)
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argues there was insufficient evidence to support the family
court's conclusion that Mother was not presently willing and able
to provide the Children with a safe family home.
HRS § 587A-33(a) (2018) governs the termination of
parental rights. It provides in relevant part:
(a) At a termination of parental rights hearing, the court
shall determine whether there exists clear and convincing
evidence that:
(1) A child's parent whose rights are subject to
termination is not presently willing and able to
provide the parent's child with a safe family
home, even with the assistance of a service
plan;
(2) It is not reasonably foreseeable that the
child's parent whose rights are subject to
3/
(...continued)
assaultive conduct by the child's family members
and others who have access to the family home;
(7) Whether there is a history of substance abuse by
the child's family or others who have access to
the family home;
(8) Whether any alleged perpetrator has completed
services in relation to any history identified
in paragraphs (6) and (7), and acknowledged and
accepted responsibility for the harm to the
child;
(9) Whether any non-perpetrator who resides in the
family home has demonstrated an ability to
protect the child from further harm and to
ensure that any current protective orders are
enforced;
(10) Whether there is a support system available to
the child's family, including adoptive and hanai
relatives, friends, and faith-based or other
community networks;
(11) Attempts to locate and involve extended family,
friends, and faith-based or other community
networks;
(12) Whether the child's family has demonstrated an
understanding of and involvement in services
that have been recommended by the department or
court-ordered as necessary to provide a safe
family home for the child;
(13) Whether the child's family has resolved
identified safety issues in the family home
within a reasonable period of time; and
(14) The department's assessment, which shall include
the demonstrated ability of the child's family
to provide a safe family home for the child, and
recommendations.
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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;
(3) The proposed permanent plan is in the best
interests of the child. . . .
. . . .
(4) The child consents to the permanent plan if the
child is at least fourteen years old . . . .
"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 omitted) (quoting In re Doe, 84 Hawai#i 41, 46, 928 P.2d
883, 888 (1996)).
[T]he 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; . . . 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.
Id. at 190, 20 P.3d at 623 (citations omitted).
Here, the family court entered extensive findings of
fact (FOFs) in FC-S No. 19-0039K (AQ1 Case) and FC-S No. 18-0016K
(Twins Case) related to Mother's willingness and ability to
provide the Children a safe family home. The FOFs describe,
among other things, Mother's history of substance abuse; her
failure to recognize the problem and its impact on her
functioning as a parent; her failure to participate in and
complete substance abuse treatment and 12-step program meetings;
her history of positive urinalysis tests for marijuana,
methamphetamine, and fentanyl; her pattern of missed
appointments, missed court dates and discharge from treatment
services due to non-compliance; her failure to return phone calls
from, and maintain consistent contact with, DHS; the impact of
her substance abuse on the Children; the testimony of DHS Social
Worker Nancy Radtke (Radtke) that, among other things, Mother is
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not presently willing and able to provide the Children with a
safe family home; and the testimony of Radtke and Guardian ad
Litem Carol Kitaoka that, among other things, the proposed
permanent plan is in the best interest of the Children. Because
Mother does not challenge any of the family court's FOFs, they
are binding on the parties and this court. See In re Doe, 99
Hawai#i 522, 538, 57 P.3d 447, 463 (2002) (citing Poe v. Hawaii
Labor Rels. Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002)).
Based on the entire record in each case, including the
uncontested FOFs and the testimony presented at trial, we
conclude that the family court did not clearly err in determining
there was clear and convincing evidence that Mother was not
presently willing and able to provide the Children with a safe
family home, even with the assistance of a service plan. In
making that determination, the family court was required to
consider the safe family home factors set forth in HRS § 587A-
7(a), including "[w]hether there is a history of substance abuse
by the child's family." HRS § 587A-7(a)(7). It appears the
family court did so.4/ The court was not required to recite the
enumerated factors in its findings; it was "required to only make
brief, definite, pertinent findings and conclusions upon the
contested matters[.]" In re AS, No. CAAP-XX-XXXXXXX, 2022 WL
223286, at *2 (Haw. App. Jan. 26, 2022) (internal quotation marks
omitted) (quoting Doe v. Roe, 5 Haw. App. 558, 565, 705 P.2d 535,
542 (1985)).
In that regard, Mother's history of substance abuse and
its affect on her parenting were plainly relevant factors in
determining whether she was willing and able to provide the
Children with a safe family home. Mother cites no authority, and
4/
The family court's FOFs in each case relate to various HRS § 587A-
7(a) factors, including: the initial and any subsequent reports of harm and
threatened harm to the Children (HRS § 587A-7(a)(2)); the results of Mother's
psychological evaluation (HRS § 587A-7(a)(5)); whether Mother completed
services in relation to her substance abuse history and accepted
responsibility for harm to the Children (HRS § 587A-7(a)(8)); whether Mother
demonstrated an understanding of and involvement in services that were
recommended by DHS or court-ordered as necessary to provide the Children with
a safe family home (HRS § 587A-7(a)(12)); whether Mother resolved identified
safety issues in the family home within a reasonable period of time (HRS §
587A-7(a)(13)); and DHS's assessment, including Mother's demonstrated ability
to provide the Children with a safe family home, and recommendations (HRS §
587A-7(a)(14)).
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we have found none, suggesting that in making that determination,
the family court could not consider that "Mother's sobriety is,
and has been, the main issue that has prevented reunification
with the Child[ren]."
Further, the record in each case refutes Mother's claim
that the family court terminated her parental rights based solely
on her sobriety issues, without evidence connecting those issues
to her ability to provide a safe family home. For example:
• In the Twins Case, the family court referred to a
February 22, 2018 Safe Family Home Report that
described "concerns of domestic violence, sex abuse,
substance abuse and inappropriate parenting."
• In the AQ1 Case, the family court referred to a
July 18, 2019 Safe Family Home Report describing
"ongoing safety concerns of marijuana and
methamphetamine use, missed appointments, missed
classes, discharge from services, and failure to return
calls or contact the Child Welfare Services office."
(Emphasis added.)
• In each case, the family court referred to the July 26,
2018 psychological evaluation stating that it "is
critical that [Mother] actively participates in a
formal Substance Abuse treatment problem [sic] with
aftercare and relapse prevention services to ensure
that she will not relapse and continue inappropriate
care of her children. (Emphasis added.)
• In each case, the court found that Mother was hard to
reach, often failed to answer calls or texts, kept
changing her phone or phone numbers, and had difficulty
maintaining consistent contact and communication with
the assigned DHS social worker.
• In the AQ1 case, the family court described the impact
of Mother's behavior on AQ1 and concluded that AQ1, who
was then sixteen, consented to the permanent plan of
permanent custody and adoption when an adoptive home
could be identified.
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• In the Twins case, the family court found that Mother
was unable to advance to a higher level of unsupervised
visits and continued to discuss inappropriate topics
with the Twins.
In sum, the family court did not clearly err in
determining there was clear and convincing evidence that Mother
was not presently willing and able to provide the Children with a
safe family home, even with the assistance of a service plan.
II.
In her second point of error, Mother contends that her
"substance abuse status" constitutes a disability under HRS
§ 587A-7.55/ and that her parental rights could not be terminated
on that basis. She fails, however, to state "where in the record
the alleged error was objected to or the manner in which the
alleged error was brought to the attention of the [family] court
. . . ." Hawai#i Rules of Appellate Procedure Rule
28(b)(4)(iii). Based on our review of the record in each case,
it appears that Mother never argued in the family court that her
substance abuse issues constituted a "disability" under HRS
§ 587A-7.5 (or any other law) or otherwise invoked that section's
provisions. Mother's argument is therefore deemed waived. See
SC v. JC, 151 Hawai#i 153, 165, 509 P.3d 1116, 1128 (App. 2022)
("As a general rule, if a party does not raise an argument at
trial, that argument will be deemed to have been waived on
appeal[.]") (quoting Cnty. of Hawaii v. C & J Coupe Family Ltd.,
119 Hawai#i 352, 373, 198 P.3d 615, 636 (2008)).
5/
HRS § 587A-7.5 (Supp. 2021) provides:
The court shall not consider the disability of a parent or
caregiver to be the sole factor in the court's determination
made pursuant to this part. If the court makes a
determination that a child's family is unable to provide a
safe family home and one or more of the child's parents or
caregivers are disabled, the court shall make specific
written findings stating the basis for this determination.
The party attempting to demonstrate that the disability of a
parent or caregiver impairs the parent's or caregiver's
ability to parent must prove that the disability is a
factor, and demonstrate a clear nexus between the disability
and the alleged parental deficiency.
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III.
For the reasons discussed above, we affirm the Family
Court of the Third Circuit's October 7, 2021 orders in FC-S No.
19-0039K and FC-S No. 18-0016K, both entitled "Findings of Fact;
Conclusions of Law; Decision and Order Granting Department of
Human Services' Motion for Termination of Parental Rights [Filed
November 2, 2020]."
DATED: Honolulu, Hawai#i, October 21, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Matthew A. Sylva Presiding Judge
(Akamai Law, LLLC)
for Mother-Appellant.
/s/ Clyde J. Wadsworth
Abigail S. Dunn Apana and Associate Judge
Julio C. Herrera,
Deputy Attorneys General,
for Plaintiff-Appellee. /s/ Derrick H.M. Chan
Associate Judge
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