In Re Rgb

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IN THE SUPREME COURT OF THE STATE OF HAWAfI

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In the Interest of RGB, A Minor

§-°
NO. 28582 ==
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CERTIORARI TO THE INTERMEDIATE COURT OF APPE: iv
(FC-S NO. 01-O063) - F:
.“ y' mr §§
APR1L 1, 2010 l,, :r §§
99
MOON, C.J., NAKAYAMA, AND RECKTENWALD, JJ.§; §§
AND ACOBA, J., DISSENTING, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY RECKTENWALD¢ J.
In this appeal, we consider whether the family court
abused its discretion in denying Mother's motion for relief from
an order terminating Mother's parental rights. The motion
alleged that Mother received ineffective assistance of counsel in
the proceeding that resulted in the termination order, as well as
in her direct appeal from that order,
was born in July of 1999. RGB was

Mother's child, RGB,
after she was

taken into protective custody on March 30, 200l,

found dirty and without a diaper or underclothing in the custody
of Mother's ex-boyfriend, who had a history of substance abuse
and had been diagnosed with chronic paranoid schizophrenia. RGB

was later returned to Mother, but was placed in foster custody in

and has remained with the same foster family since

Apri1, 2002,

then. Mother and RGB were subsequently involved in a series of

interactions with the Department of Human Services (DHS) and
(family

proceedings before the Family Court for the Third Circuit

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court). Mother was allowed to visit with RGB, but these visits
had increasingly negative effects on RGB and were discontinued by
the family court in 2004 after it concluded that “the visits were
causing injury to [RGB’s] psychological capacity as evidenced by
a substantial impairment in [RGB's] ability to function.”
After conducting a six-day permanency hearing, the

family court issued its Findings of Fact, Conclusions of Law and
Order terminating Mother's parental rights (Termination Order) on

March l1, 2005.l On February 6, 2007, Mother filed a motion for

i“1) New Trial, and/or 2) To Reconsider and/or Amend Judgment

and/or All Previous Orders, and/or 3) For Release of All Evidence
or Files in Case, and/or 4) For Dismissal,” alleging that her
prior counsel was ineffective. The family court denied Mother's
motion on May 8, 2007.

Mother seeks review of the May 21, 2009 judgment of the
Intermediate Court of Appeals (ICA), entered pursuant to its
April 9, 2009 Summary Disposition Order (SDO), affirming the
family court’s order denying Mother's motion. In her application
for a writ of certiorari (application), Mother raises the

following questions:

A. whether The Intermediate Court Of Appeals (“ICA”)
“Borrowing” Of Criminal Matters Analogy To Apply To
Family Court Claims Of Ineffective Counsel Is
Authorized By Law And Meets Constitutional Standards?

B. whether The ICA Upholding Of The Tria1 Court's
Refusal To Release “Confidential” Records That
Appellate's [sic] Counsel Could Not Examine But At The

1 The Honorable Ben H. Gaddis presided.

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Same Time Requiring Counsel To “Identify Any Prejudice
Stemming From This Limitation” Meets Fair Disclosure
Standards?

We resolve Mother's appeal as follows. First, we
consider the basis of Mother's ineffective assistance of counsel
claim. Since we conclude that the family court properly
determined that Mother had a right to counsel under the United
States Constitution in the circumstances of this Case, we do not
reach the question of whether the HawaFi Constitution provides
indigent parents a right to counsel in all termination
proceedings. Second, we conclude that a Hawafi Family Court
Rules (HFCR) Rule 60(b)(6) motion was an appropriate method for
raising an ineffective assistance of counsel claim in the
circumstances of this case.

Third, we hold that the family court did not abuse its
discretion in denying Mother's motion, particularly in view of
the negative impacts on RGB of the delay in resolving her
custodial status. Thus, we respectfully disagree with the
dissenting opinion's view that such impacts should not be
considered in assessing that motion. Dissenting Opinion at 81-
82. The motion was filed nearly two years after the family
court's March 1l, 2005 order terminating Mother's parental
rights, and contained no allegations whatsoever about what errors
had occurred in the family court proceedings leading up to the
entry of the Termination Order. By the time the motion was

filed, RGB had been living with the same foster family for nearly

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five years, and wanted to be adopted by that family. However,
the adoption had been delayed pending the resolution of these
proceedings. As set forth in a January 2006 report by DHS to the

family court:

[RGB’s foster parents] want to adopt [RGB] and have
been ready to proceed with the adoption process ever
since biological mother's parental rights were
terminated in March 2005. However, biological
Mother's pending appeal to the court . . . has
prevented the DHS and [RGB’s foster parents] from
proceeding with the adoption. Hence, [foster parents]
and [RGB] and the entire family are disappointed. Per
[foster mother], [RGB] continually wonders and asks
“when will she be ad0pted”.

Given those circumstancesy and given Mother's failure
in the Rule 60(b)(6) motion to identify any potentially
meritorious issues that would have been raised but for the
ineffectiveness of her counsel, the family court did not abuse
its discretion when it denied the motion.

Finally, we hold that the family court did not abuse
its discretion in precluding Mother from having access to those
records in this case that were generated after September 28,
2006, i.e., more than a year after her parental rights were
terminated, while allowing her to have access to records created
prior to that date for purposes of appeal.

Accordingly, we affirm the judgment of the ICA.

I. Background

A. Termination of Parental Rights
DHS first became involved with Mother and RGB on

March 30, 200l, when RGB was taken into protective custody. On

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April 6, 200l, the family court awarded DHS temporary foster
custody of RGB. On June l5, 200l, RGB was returned to Mother's
care under family supervision. On April 4, 2002, the family
court awarded foster custody to DHS. Mother was allowed
supervised visitation. On April 1, 2004, the family court
suspended visitation between Mother and RGB indefinitely.

A permanent plan hearing was held on August 23,
August 30, September 3, September 20, September 27 and
December l3, 2O04.2 On March 1l, 2005, the family court issued
its Termination Order, which included the following relevant

Findings of Fact (FsOF):3

3. Mother grew up on the mainland in difficult
circumstances. She was hospitalized on at least four
different occasions for psychiatric conditions.
Mother abused drugs and substances. She was in a
series of unstable, sometimes violent relationships
with men. `

4. Mother had another child who was removed
from her care by the State of California. Over her
objection, the parental rights of Mother to her older
daughter were terminated, and the child was
permanently placed with Mother's sister.

0.' while living in the bay area of California,
Mother again became pregnant. Fearful that California

2 No transcripts of this or any other proceeding in this case were
included in the record on appeal.

3 Mother did not dispute the family court's FsOF in her February 6,
2007 motion, in her appeal to the ICA, or in her application to this court,
and we therefore rely on the family court's FsOF for the purposes this appeal.
Cf. Robert's Haw. Sch. Bus, Inc. v. Laupahoehoe Transp. Co., 91 HawaFi 224,
239, 982 P.2d 853, 868 (1999) (holding that “[f]indings of fact that are
unchallenged on appeal are the operative facts of a case”), superseded by
statute on other grounds as recognized in Haw. Med. Ass'n v. Haw. Med. Serv.
Ass'n, 113 Hawafi 77, 107, 143 P.3d 1179, 1209 (2006).

Moreover, we note that the dissent relies in part on the family
court's FsOF regarding Mother's mental health condition to dispute the
propriety of the family court's decision to discharge Mother's counsel,
Dissenting Opinion at 78, and also relies on DHS's Answering Brief to the ICA,
which draws significantly from the FsOF, for its own recitation of the facts,
Dissenting Opinion at 4-7.

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authorities would remove her second child, she moved
to Hawafi when eight months pregnant with [RGB].

8. Mother encountered many difficulties living
in HawaFi after the birth of [RGB]. She did not
apply for public assistance because she was fearful
that State authorities might remove [RGB]. She had
very little money. At times she and [RGB] were
homeless.

9. On March 30, 200l, [RGB] was taken into
police protective custody after she was found in the
care of [Mother's ex-boyfriend]. At the time that she
was placed in police custody, she was dirty and did
not have on a diaper or underclothing.

lO. [Mother's ex-boyfriend] and Mother had been
in a relationship for many years. [Mother's ex-
boyfriend] had a history of substance abuse and a
mental health diagnosis of chronic paranoid
schizophrenia with acute exacerbation. He had been
acquitted of two sexual assault offenses due to
incapacity.

1l. A temporary foster custody hearing was
conducted. Mother applied for and received the
services of court-appointed attorney, Cynthia Linet.

l2. On April 6, 200l, the Family Court awarded
the Department of Human Services (“DHS”), temporary
foster custody of [RGB] on the basis that she was
subject to imminent harm due to Mother's past history
of mental health problems and her current relationship
with [Mother's ex-boyfriend].

l4. On June l5, 200l, . . . the Court returned
[RGB] to [Mother's] care under family supervision.

l5. On November 29, 200l, DHS again petitioned
the Court for foster custody of [RGB]. Mother and
[RGB] had been evicted from the homeless shelter and
had moved to the Rossmond Hotel. Mother was having
difficulty controlling [RGB] and following through
with skills taught by the parenting program that she
attended.

16. The Court . . . continued family
supervision of Mother and [RGB].

l7. Mother's attorney, Ms. Linet, moved to
withdraw as counsel, Mother asked to be allowed to
represent herself. The Court allowed Ms. Linet to
withdraw as Mother's counsel and allowed Mother to
appear pro se.

18. On April 4, 2002, DHS again petitioned for

foster custody of [RGB]. Mother and [RGB] had moved
back to the homeless shelter because the Rossmond
Hotel was closed for renovation. . . . Based on

representations made, the Court awarded foster custody
of [RGB] to DHS and scheduled a contested disposition
hearing to determine whether [RGB] should remain in
foster care.

l9. The Court appointed Alexander W. Thoene,

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Jr.[4] to serve as counsel for Mother. The
disposition hearing was conducted on April 12, l5, and
May l4, 2002. Mother failed to appear for the fourth
day of the disposition hearing on June 17, 2002.

20. The Court defaulted Mother for purposes of
the disposition hearing and found that she suffered
from a mental condition which distorted her perception
of the people that she had been in contact with to the
point that she considered all of them to be conspiring
against her to deprive her of [RGB]. The Court
concluded that this perception of Mother and her
inability to control her emotions led her to have
conflicts with people who had been trying to assist
her. The Court found that Mother was a person of
above-average intelligence and was able to pass parent
education classes. Not withstanding her cognitive
abilities, the Court found that Mother's mental
disorder prevented her from applying the lessons
learned to adequately parent [RGB], and that
consequently, [RGB] was often deprived of clean and
appropriate clothing, did not baths on a regular
basis, and did not have adequate supervision. The
Court determined that this was not a simple matter of
Mother having a different lifestyle, but more a matter
of Mother being incapable of adapting to situations
which were incompatible with her lifestyle and
beliefs, and that this inability to adapt, was a by-
product of her mental disorder, and endangered [RGB]
and rendered Mother incapable of providing a safe home
for [RGB]. The Court concluded that continuation of
[RGB] in Mother's care would result in serious injury
to [RGB], delaying physical, emotional, social, and or
psychological development with long term negative
consequences for [RGB].

22. On July B, 2002, Mother filed a motion to
terminate Alexander W. Thoene, Jr. as her counsel.
She indicated that she would proceed pro se. On
August 8, 2002, the Court granted Mother's request to
proceed pro se, but required Mr. Thoene to serve as
stand-by counsel for Mother to assist her in the
presentation of her case.

24. At first, visits . . . between Mother and
[RGB] went well. [RGB] appeared more loving towards
Mother and did not seem to be resistant to visits.
Mother interacted with [RGB] very appropriately,

25. On September l9, 2002, a . . . visit did
not go well. Mother seemed easily frustrated. When
{RGB] wanted to call her foster mother or preschool
teacher on a play phone, Mother stopped participating
in the play. Mother became emotional and made
inappropriate statements to [RGB] such as, “I'm your
mommy, they want to take you away and make you think

4 Thoene is referred to variously in the record as “Alexander” and
“Alika.” For the purposes of this opinion, we adopt the phrasing reflected in
the family court's FsOF and appointment of counsel, and utilize the name
“Alexander.”

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someone else is your mommy, but I am your mommy.”
[RGB] had to go to the bathroom five times in the last
hour of the visit.

27. In the summer and fall of 2002, [RGB] began
to make statements about a “man in a brown car.”

[RGB] made statements that suggested that the man had
been violent towards Mother. [RGB] also said that the
man in the brown car put a thing in her mouth and she
threw up. Service providers became concerned that
[RGB] may have been sexually abused by a male before
she was placed into foster care.

28, Mother's response to the concern about the
possible sex abuse of [RGB] was to vehemently reject
any possibility that the child had been sexually
abused while in her care. Much later in the case,
Mother disclosed that she had owned a brown car during
the time that she and [RGB] were homeless.

33. During the early part of 2003, Mother's
visits with [RGB] continued. While most visits went
well, more difficulties arose in February. Mother
began to make inappropriate comments to [RGB] during
supervised visits. Comments by Mother included
statements such as, “They are brain washing you” and
“Mommy is looking for a house and soon you can come
homé.” . .

34. The foster mother reported that [RGB]
returned from visits with Mother very upset with
concerns about where she was going to live and whether
she would be moved.

35. Between January and March 2003, [RGB] had
displayed numerous anxious behaviors both in the home
of the foster parents and in therapy. After visits
with Mother were suspended, [RGB's] anxious behaviors
abated.

37. On May 1, 2003, at Mother's request, stand-
by counsel, Alexander W. Thoene, Jr. withdrew and G.
Kay Iopa was appointed as replacement stand-by counsel
for Mother.

38. Throughout this proceeding, Mother has had
difficulties with her attorneys. At times, she has
insisted on proceeding pro se. At other times, she
has requested new counsel or postponements until she
could gather enough funds to hire counsel of her
choice. Mother has proven herself unable to organize
and effectively present her own case. At the same
time, she has often refused to allow her court-
appointed counsel to proceed on her behalf. For this
reason, the Court appointed Mother stand-by counsel.
Mother was allowed to present her own case and
question witnesses to the extent that she was able to
do so, but she was also allowed to rely on stand-by
counsel to present her case when she was not able to
proceed. Stand-by counsel was also available to
assist Mother in the preparation of appropriate
motions and pleadings.

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42. On August 8, 2003, [RGB] had a visit with
Mother at Parent's Inc. This visit seemed to go well,
but the foster mother reported that on the drive home
from the visit, [RGB] asked about what happens to
mommies that hurt their babies. The foster mother
asked how the mommy hurt the baby and [RGB] responded
that the mother took the baby to the man in the brown
car and held her down and the man “hurt me.” [RGB]
told the foster mother that the man said that he was
going to cut her with a knife and was going to put it
in her “tuni” and cut her up. “Tuni” is a word that
[RGB] uses for vagina. [RGB] related that she kicked
the man in his leg and he got really mad and slapped
her and she screamed loud. [RGB] also said that
Mother[] let the man put medicine in her mouth and
that she threw up all over Mother's bed. Concerns
about the statements of the child caused DHS again to
suspend[] visits with Mother.

43. On August 28, 2003, visits between [RGB]
and Mother again resumed . . . .

44. During this period, there were numerous
conflicts between Mother and the supervising agency

54. At a review hearing on January 29, 2004,
the DHS worker reported that Mother continued to make
inappropriate statements to [RGB] about how she was
going to return to Mother. The social worker
indicated that [RGB’s] old fears had returned. .

55. [RGB] and Mother continued to visit twice a
week for one and a half hours per visit under the
supervision of a DHS aide. While the visits seemed to
go well, [RGB] showed troubling signs of distress in
her play sessions with her therapist. Prior to visits
with Mother, [RGB] would cry frantically and vomited
on one occasion.

56. In February 2004, in the evenings, [RGB]
began complaining of a fast heart beat and gasping for
breath. Her pediatrician . . . diagnosed her with
adjustment disorder noting that the stress reaction
was likely caused by the visits that [RGB] had with
Mother.

59. On March 12, 2004, [RGB] asked to leave a
supervised visit early. Mother became very upset and
began to accuse the supervisor of training [RGB] to
make such statements. The visitation supervisor
attempted to terminate the visit, but Mother continued
to escalate emotionally, threatening to sue the social
worker and saying that she would talk to the Governor.
[RGB] reacted by trying to reassure and placate both
Mother and the visitation supervisor. [RGB] cried as
the supervisor carried her back to the State Building
where [RGB] was placed in an office. Mother followed
[RGB] and supervisor back to the office where she
created a scene, shouting and demanding to see [RGB].
After Mother finally left, [RGB] asked the visitation
supervisor whether it was safe to leave.

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57.[5] On March l8, 2004, the Court again
suspended visits between Mother and {RGB] pending
another court hearing,

59. On April l, 2004, after a hearing, the
Court concluded that further visits with Mother would
be psychologically injurious to [RGB]. Visitations
between [RGB] and Mother were suspended indefinitely.

60. Shortly after the visits with Mother were
suspended, [RGB’s] symptoms of distress and anxiety
disappeared.

61. Mother has had no contact with [RGB] since
March l2, 2004.

62. Over the years, Mother has substantially
improved her circumstances. She has stopped abusing
drugs and alcohol; her mental health condition has
improved; she has required no hospitalization for
mental health problems. Mother has consistently
sought treatment_and has taken medication when
prescribed. Mother has found safe and stable housing,
and has managed to maintain such housing for an
extended period of time. She has terminated her
relationship with an inappropriate, abusive partner.
She has obtained and completed services, and has for
the most part successfully completed the services
required in her service plan.

63. Unfortunately[,] serious problems remain.
Throughout the course of these proceedings, Mother has
suffered from mental health disorders which seriously
compromise her ability to provide appropriate care for
[RGB] . ‘
64. Mother suffers from a mental health
condition that distorts her perceptions of people and
this causes her to come into conflict with and to
refuse to cooperate with people that are trying to
help her.

69. Mother does not understand or appreciate
the impact that her own behavior has on [RGB]. She
accepts little responsibility for [RGB’s] problems and
instead focuses on complaints and criticisms of
others.

73. when visits with Mother were finally

terminated, [RGB] was almost five. At that time,

[RGB] was a very vulnerable child who suffered from
anxiety, regressive behavior, negative psychological
symptomatololgy [sic] and general emotional
disruption. [RGB’s] psychological distress threatened
to interfere with her developmental growth and bonding

abilities, [RGB’s] psychological problems were
primarily caused by stress generated by visits with
Mother.

74. At the time that visits between Mother and
[RGB] were terminated, the visits were causing injury
to [RGB’s] psychological capacity as evidenced by a

5 Several of the family court's FsOF are misnumbered, and several
numbers appear more than once. The original numbering is preserved here.

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substantial impairment in [RGB’s] ability to function.
Had the visits with Mother continued, [RGB] would have
suffered continued psychological harm which would have
resulted in serious injury to her, delaying physical,
emotional, social, and/or psychological development
with long term negative consequences for the child,

75. Despite numerous and extensive efforts by
many service providers and therapists, it appears
unlikely that the mother/daughter relationship between
Mother and [RGB] will improve. Returning [RGB] to
Mother's home and care would be harmful to [RGB].

76. [RGB] is now almost six. After visits with
her mother terminated, [RGB’s] symptoms of
psychological distress have abated and she is doing
very well.

77. Under the circumstances presented in this
case, reasonable efforts were made by the DHS to make
it possible for [RGB] to return to her mother's home.

78. Mother and Father[5] are not currently able
to provide [RGB] with a safe family home, even with
the assistance of a service plan. It is not
reasonably foreseeable that either parent will become
able to provide [RGB] with a safe family home within a
reasonable period of time.

79. The proposed permanent plan is in the best
interests of [RGB].

The family court concluded that “[i]t is in the best
interests of [RGB] that permanent custody of the child be awarded

to DHS.” The family court ordered, in pertinent part:

2. Permanent custody of [RGB] is awarded to the
Department of Human Services pursuant to H.R.S. 587-
73(b)(l) and existing parental rights of Mother and
Father of [RGB] are terminated,

4. It is in [RGB’s] best interests that the
participation of Mother and Father in subsequent
hearings be limited or restricted to appearances on
any motions for relief from this decision and order or
any motions necessary to pursue an appeal. ’

7. G. Kay Iopa, stand-by counsel for Mother, is
discharged. Based on representations as to changes in

her resource status, if Mother wishes the assistance
of court-appointed counsel to pursue further relief or
to perfect an appeal, she must tender a new
application for court-appointed counsel to the Court
immediately.

(Emphasis added)¢

B. Mother's difficulties with counsel

5 Father was defaulted from the proceedings in October 200l,

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As stated in the family court's March ll, 2005 FsOF,
“[t]hroughout this proceeding, Mother has had difficulties with
her attorneys.” Mother's first attorney, Cynthia Linet, withdrew
as counsel for Mother on November 30, 200l. Mother then
proceeded pro se. However, during an April 4, 2002 hearing, the
family court awarded DHS foster custody of RGB. Mother
subsequently applied for court-appointed counsel on April 8,
2002, and the family court appointed Alexander Thoene, Jr.
(Thoene) as counsel for Mother. Mother, however, continued to
submit documents to the court on her own behalf, including an
Objection to Proposed Order dated April l9, 2002.

On July 8, 2002, Mother filed a motion to dismiss
Thoene as counsel and to proceed pro se. In its order following
a hearing on August 8, 2002, the family court denied Mother's
motion to dismiss Thoene, but allowed Mother to proceed pro se
with Thoene as standby counsel.

On May l5, 2003, G. Kay Iopa (Iopa) was substituted “as
counsel” for Mother, effective May l, 2003. Mother continued to
file motions on her own behalf, including a May 21, 2003
Emergency Motion to Advance June 13, 2003 Hearing on Mother's
Motion to Restore Visitation.

lt appears that Mother subsequently had difficulties
with Iopa. On July 21, 2003, the family court held a hearing and
issued an order that noted, “Mother can obtain a new lawyer or

apply for court appointed counsel. If she obtains a new counsel,

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Ms. Iopa will be [discharged].” In a hearing on July l2, 2004,
Mother made an oral motion for a new attorney. In its written
order, which was not issued until March 7, 2005, the family court
denied Mother's oral motion and noted her objection for the

record. The family court noted:

[Iopa] was appointed as stand by counsel as [Mother]
wanted to represent herself. At times [Mother]
represented herself and at times relied on Ms. Iopa.
The court accepted this as the court felt it was
useful. The court has seen nothing to indicate Ms.
Iopa [has] not been effective in her representation
and notes Ms. Iopa has worked hard to assist [Mother].
Little purpose would be served to appoint a new
attorney. The new attorney would have a difficult
time getting up to speed due to the volume of
documents in this case & does not see how new counsel
could provide better representation.

On September 17, 2004, Mother filed a pro se Motion for
Dismissal of Counsel and Continuance of September 20 [H]earing

and to Grant Continuance to Submit witness Letters. Mother

,stated:

3. Assigned counsel, Kay Iopa, has told me
repeatedly since July 29, 2004 that “it is beyond my
scope of duties as stand-by counsel” to help locate,
contact, or interview witnesses.

4. By contrast, a) the lawyer has made
decisions without my knowledge or consent b) Kay
Iopa's assignment to this case has caused lawyers who
were interested in this case to decline, because they
choose not to compete with the lawyer assigned as
counsel.

5. Affiant has enough money today to secure
independent counsel.

6. Absence of counsel would encourage new
counsel to help me conclude this case effectively, and
therefore would in fact be more time and cost
effective.

7. Affiant compels the court to note that this
lawyer, and counsel preceding assigned by the court,
have neglected proper counsel or representation and
proof of my ability to work with another lawyer needs
to be considered.

8. volunteer lawyer prior to that was effective
in returning my child home, then was unable to
continue pro bono.

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On October 21, 2004, Mother submitted an Application
for Court-Appointed Counsel. A handwritten note on her
application states, “Application denied[.] Ms. Iopa will

continue as stand by counsel until further order.”

»C. Subsequent proceedings

Following the six-day permanency plan hearing, the
family court issued its March ll, 2005 Termination Order, in
which the court discharged Iopa.7 On March 29, 2005, Mother
filed an Application for Court-Appointed Counsel. The family
court approved the application the same day, and appointed
Carrie M. Yonemori (Yonemori) as Mother's counsel effective
March 29, 2005. Yonemori appears to have been appointed as
regular, as opposed to standby, counsel.

There are no filings in the record from either Yonemori
or Mother from March 29, 2005 to March l0, 2006.8 The record is
silent during the intervening period, with the exception of

several orders of the family court continuing permanent custody

7 In its Termination Order, the family court noted that it made its
decision to discharge Iopa “[b]ased on representations as to changes in
[Mother's] resource status.” Although we do not have a transcript of the
proceedings to indicate what was represented to the family court, Mother's
prior statements to the family court concerning her resources include her
September l7, 2004 Motion for Dismissal of Counsel in which she stated,
“[a]ffiant has enough money today to secure independent counsel[,]” and a
February l, 2005 Pro Se Closing Argument and Request in which Mother stated,
“[m]y financial future is more secure based on an inheritance from my parents,
currently under probate in Montgomery County, Pennsylvania.”

5 As explained further, infra, on March l7, 2006, Yonemori filed a
declaration stating that she had attempted to file a Notice of Appeal “on or
about September 30, 2005,” but that the documents were returned to her for
corrections. Yonemori asserted that she “completely forgot about making the
appropriate corrections for this case.”

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and various filings on the part of RGB's guardian ad litem and
DHS.

For example, on August 3, 2005, DHS filed a report to
the family court in which it noted that RGB was “doing well in
her current placement[,]” but that Mother's appeal “may delay the
adoption process[.]” On August 4, 2005, RGB's guardian ad litem
filed a report stating that DHS would be unable to proceed with
adoption until Mother's appeal was resolved, and noted that
delaying the adoption “is certainly not in the child’s best
interest[.]” On January l7, 2006, DHS filed a report to the
family court in which it noted that RGB “continues to do very
well in the care of foster parents, . . : whom she has resided
with for nearly four years.” DHS further noted that RGB's foster
parents were “ready to proceed with the adoption process[.]”

On March l0, 2006, Mother filed a pro se Motion for
Relief from Judgment with regard to the family court's March 1l,
2005 Termination Order, pursuant to HFCR Rule 60.9 Mother

submitted an affidavit along with the motion, in which she

declared:

l. I am the mother of [RGB];

2. The court made a finding to terminate my parental

rights on March 11, 2005.

3. Counsel assigned by this court remains ineffective
to bring this matter to justice;

4. The court made it's finding based on false and

inaccurate information;

5. Based on the mistake, inadvertence, surprise,

9 As discussed more fully in Part III(B), infra, HFCR Rule 60(b)

permits a party, within certain limitations, to seek relief from a judgment or
order for reasons of mistake, inadvertence, excusable neglect, newly
discovered evidence, fraud, and “any other reason justifying relief[.]”

_15_

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excusable neglect, fraud, misrepresentation,
professional error, misconduct and/or newly discovered
evidence, I now bring this motion.

On March l3, 2006, Yonemori filed a Notice of Appeal of
the Termination Order on Mother's behalf.” On March l5, 2006,
Yonemori also filed a Motion for Relief from the March l1, 2005
Order, pursuant to HFCR Rule 60, on Mother's behalf. In
Yonemori’s Declaration of Counsel in support of the motion, she

asserted:

2. I am bringing this Motion . . . because
[Mother] believes that there has been (a) mistake,
inadvertence, and/or excusable neglect; (b) newly
discovered evidence which by due diligence could not
have been discovered in time to move for a new trial
under Rule 59(b); and (c) fraud, misrepresentations
and/or other misconduct by the state.

3. [Mother] states that the court's final
judgment is based on false testimony and deficient
documents, some of which she was not able to properly
cross-examine, and therefore through mistake,
inadvertence, and/or excusable neglect the court has
rendered an erroneous decision which must be
corrected.

4. Under-signed was appointed as counsel to
[Mother] after the ten day time allowed for in Rule
59(b) and therefore she and [Mother] did not have an
opportunity to discuss [Mother's] concerns and/or go
through the voluminous record in this case.

5. [Mother] believes that the State's
witnesses, documents, and testimony were fraudulent,
grossly misrepresented facts, and constituted
purposeful misconduct.

6. [Mother] has attempted to bring up these
points and arguments, as well has [sic] have her side
of the case heard, to the court in the past by [sic]

m On June 28, 2006, this court dismissed the appeal for lack of
jurisdiction, stating:

Mother-Appellant did not file a motion for
reconsideration within twenty days after entry of the
March 1l, 2005 findings of fact, conclusions of law,
and order, as [HawaFi Revised Statutes (HRS)] § 571-
54 (l993) required. Therefore, Mother-Appellant
failed to perfect her right to assert an appeal under
HRS § 571-54 (l993), and there is no appealable order.
Absent an appealable order, we lack jurisdiction over
this case.

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was prevented from doing so by her attorneys.

On March l7, 2006, Yonemori, on behalf of Mother, filed
two separate motions to extend time to file and docket the record
on appeal. Although both motions were file-stamped March l7,
2006, the first was dated September 27, 2005, and the second was
dated March l0, 2006.

In her Declaration of Counsel accompanying the motion

dated September 27, 2005, Yonemori declared:

2. That I was unaware that a Notice of Appeal
had not been filed in the case herein. I have only
done a few Family Court DHS appeals and in all
previous cases, the prior attorney had filed the
Notice of Appeal.

6. That between late March and August of this
year, I have had four (4) close family members
pass away. Therefore, 1 may have been preoccupied and
not as vigilant about case details.

7. That the delay in filing the Notice of
Appeal was in no way caused by the appellant, who is
understandably quite anxious about this case.

In her Declaration of Counsel accompanying the motion

dated March 10, 2006, Yonemori declared:

2. That on or about September 30, 2005[,] I
filed a Notice of Appeal in the case herein.

3. That sometime in October, I was notified by
Family Court Clerk Jodi Leialoha that my cover page
was in error and that the documents were being
returned to me for corrections.

4. That I waited for the return of the
documents and checked my court jacket at the Circuit
Court on a weekly basis. 1 did not realize that the
documents were returned to me via my Family Court
jacket until late November.

5. That my close friend . . . passed away in
late November and I left shortly thereafter for the
mainland to attend his funeral and for sometime off.

6. That due to the stresses of leaving for the
mainland, holidays, and finishing up work for
EPIC/Ohana Conferencing, I completely forgot about
making the appropriate corrections for this case.

7. That the delays in filing all papers in this
case are due to my irresponsibility and are in no way
caused by the appellant, who is understandably quite
anxious about this case.

_]_'7_

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The family court appears to have been concerned that
Yonemori could have a conflict of interest in representing Mother
in an appeal alleging ineffective assistance of counsel. The
family court held a hearing on April 6, 2006 and found that,
“[b]ased upon [Mother's] representations in court, the court
finds she understands the potential conflict of interest between
her & her current counsel & waives any conflict of interest.”
The family court further noted, “[Mother] waives any conflict of
interest as to her current counsel.”

On May 23, 2006, DHS filed a report to the family
court, in which it noted that “[RGB] continue[d] in her
placement” where she “has been [] since April 4, 2002[,]” that
she “wants to remain there forever because she loves her foster
parents whom she refers to as ‘mom' and ‘dad[,]'” and that “she
wants to be adopted as soon as possible[.]”

On June 2, 2006, Mother, through Yonemori, filed a

”“ Yonemori

document styled “Specifications on Rule 60 Motions.
asserted that Mother had verbally agreed to consolidate the two
previously-filed Rule 60 motions. Yonemori also provided some
argument on Mother's previous assertions that she was entitled to

relief due to “(l) mistake, inadvertence, and/or excusable

neglect; (2) newly discovered evidence which by due diligence

n Although this document is file-stamped “May 33, 2006,” a hand-
written date of “June 2" appears above the stamped date.

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could not have been discovered in time to move for a new trial
under Rule 59(b); and (3) fraud, misrepresentations and/or other
misconduct by the state.”

with regard to Mother's assertion that she was entitled
to relief due to mistake, inadvertence and/or excusable neglect,
Mother, through Yonemori, asserted that the court's judgment was
based on false or erroneous testimony and documents. Mother
further asserted that she was prejudiced by the ineffective
assistance of Thoene because she was only allowed to communicate
with him in writing, and of Iopa because they disagreed as to
case direction. Mother further asserted that Yonemori's “failure
to file a timely appeal and meet with [Mother] in 2005” had
delayed resolution of the case.

with regard to Mother's assertion that she was entitled
to relief due to newly discovered evidence, Mother asserted that
she and RGB were beneficiaries of her parents' trust, which had
been the subject of litigation at the time of the permanency plan
proceedings. Mother further asserted that termination of her
parental rights would impact RGB’s inheritance rights, and that
any “perceived deficiencies” in Mother's care of RGB would be
corrected when she received the trust proceeds.

with regard to Mother's assertion that she was entitled
to relief on the basis of fraud, misrepresentations and/or
misconduct by the State, Mother asserted that “State's witnesses,

documents and testimony were fraudulent, grossly misrepresented

_l9_

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facts, and constituted purposeful misconduct.”

Also on June 2, 2006, Yonemori filed a Motion for
withdrawal and Substitution of Counsel. 1n Yonemori’s
Declaration of Counsel in support of the motion, Yonemori

asserted:

2. 1 am bringing this Motion for withdrawal and
Substitution of Counsel because 1 believe that a legal
conflict exists with my continued representation of

[Mother].

3. [Mother's] Rule 60 motion alleges in part
ineffective assistance of counsel. 1 am one of the
three attorneys who may not have effectively assisted
[Mother].

4. [Mother] verbally executed a waiver of

conflict with me at the last court hearing.

5. 1 do not want to see [Mother] prejudiced in
anyway [sic] by her waiver and 1 have spoken to her
about the importance of preserving all possible
grounds of appeal. [Mother] stated that it was not
her intent that this waiver be “permanent.”

10. [Mother] is in contact with an attorney (in
California, but also still actively licensed in
Hawaii) who has excellent foresight and understanding
about this case. 1 have also spoken with him about
the pending Rule 60 motion and possible appeal. 1t is
my recommendation that the court consider appointing
this individual as [Mother's] counsel.

The family court held a hearing on June 2, 2006 and, in
its corresponding June 26, 2006 order, found that “due to
[Mother's] current appeal, this court lacks jurisdiction to act
on her Rule 60(b) motion and motion for withdrawal and
substitution of counsel[.]” The court “[held] in abeyance any
ruling on [Mother's] Rule 60(b) motion or motion for withdrawal
and substitution unless moved on; and directs her and her counsel
to address these to the appellate court.” On June 28, 2006, this

court dismissed the appeal for lack of jurisdiction, See n.10,

SUQI`B. .

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Subsequently, on September 28, 2006, the family court
orally denied the motions for relief and Yonemori’s motion to
withdraw. On October 17, 2006, prior to the issuance of the

family court's written order, Mother appealed pro se from the

family court's oral announcement denying her motions for relief.

The 1CA dismissed Mother's appeal for lack of jurisdiction,
“because the family court ha[d] not reduced the September 28,
2006 oral announcement to an appealable written order.”

On November 9, 2006, the family court issued its
written order, denying Mother's pro se motion and Yonemori’s
motion for relief, as well as Yonemori's motion for withdrawal
and substitution of counsel. The court found that Yonemori's
motion for relief was untimely. with regard to Mother's pro se

motion, the family court found:

(1) the motion only requests general relief and Rule
60(b) requires particularity with respect to [] some
of the relief being sought in this motion; (2) the
motion fails to provide any new evidence to support a
basis for relief under Rule 60(b), Hawaii Family Court
Rules; (3) as to the relief sought, the court afforded
Mother . . . extensive time at trial to present
evidence to support the relief currently being
requested and to address all of the issues for which
relief is being sought in this motion; (3) [sic] the
court appointed legal counsels to assist Mother

to the extent she was willing to work with the legal
counsels appointed; (4) Rule 6, Hawaii Family Court
Rules does not permit the court to extend or enlarge
the time within which to bring this motion and the
court will not enlarge or extend the time within which
this motion can be brought; and (5) the time within
which to bring this motion has been long outstanding
causing delay in the final resolution of the case and
this matter needs to be put to rest[.]

The family court also found:

Mother['s] . . . parental rights have been terminated
'and due to this status and the possibility of

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dissemination of these confidential records, the court
finds that future court records are not currently
available to Mother . . . ; provided however that
court records will be made available for any appellate

review of this decision.

Mother did not appeal the family court's written order.

On February 6, 2007, Mother's new counsel, James
Ireijo,” filed a motion in the family court for “l) New Trial,
and/or 2) To Reconsider and/or Amend Judgment and/or All Previous
Orders, and/or 3) For Release of All Evidence or Files in Case,
and/or 4) For Dismissal.” The motion cited HFCR Rule 7(b), and
was supported by a Declaration of Counsel, which asserted that
Mother was not afforded competent legal counsel during several
“pivotal” moments in the case, and was therefore denied her due
process rights and equal protection of the law under the United
States and HawaFi Constitutions. Specifically, the declaration
alleged that Mother was not represented by competent counsel and

was denied her due process rights by:

the Order Denying Mother's Motion to Reconsider Denial
of Oral Motion To Continue Trial; and Exclusion of
Exhibits Filed December 23, 2004, filed on March 7,
2005,[“] and/or, the Order Denying Mother's Motion to

n 1t is unclear from the record when or how Yonemori withdrew from
the case.
3 On December 23, 2004, Mother filed a Motion to Reconsider Denial

of Oral Motion to Continue Trial, and Exclusion of Exhibits. Mother requested
that the court “[c]ontinue the evidentiary portion of the proceedings to allow
MOTHER to call additional witnesses, whose identities have been previously
disclosed[,]” and “[t]o allow the admission into evidence, audio tapes
prepared by MOTHER of parent/child visits and MOTHER's interactions with
service providers.” Mother's motion was supported by a Declaration of
Counsel, in which 1opa attested:

2. MOTHER has strongly expressed her
dissatisfaction with the extent of information before
the Court;

3. MOTHER wishes to bring additional witnesses,

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Reinstate visitation Filed January 11, 2005, filed on
March 7, 2005,[“] and/or at the time of entry of the
Court's Findings of Fact, Conclusions of Law and Order
filed on March 11, 2005.

(Emphasis in original).
The Declaration further asserted:

[Mother] did not have competent or any counsel when
her child was permanently removed or taken away by
Order on March 1l, 2005, thus, the lack thereafter of
a fair and legal opportunity to have further evidence
considered or not considered, as well as losing her

right to appeal due to severe time constraints.

The Declaration did not specify what error, if any,
occurred during the permanency plan hearing. The Declaration
further asserted that denying Mother access to records available
to the appellate court was “a direct violation of the right to
due process[.]”

DHS filed a memorandum in opposition to Mother's motion
on April 23, 2007. DHS objected to Mother's motion for relief as
untimely and asserted that the motion lacked merit because “the
record reflects that during the course of the case, Mother

dictated who would represent her and how they would represent her

introduce audio tapes and augment her previous
testimony;

4. MOTHER's desire is to provide the Court with
a proper basis for its decision and to ensure a
complete record; and

5. MOTHER seeks this additional opportunity as
an accommodation for her established disability.

The family court issued its written denial of Mother's motion on
March 7, 2005.

M On January 1l, 2005, Mother filed a Motion to Reinstate
Visitation. Mother's motion was supported by a Declaration of Counsel, in
which Iopa stated that Mother was receiving care from Care HawaFi and had
been prescribed medication for anxiety, and that the YMCA was willing to
supervise visits between Mother and RGB. The family court issued its written
denial of Mother's motion on March 7, 2005.

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and the court tried it's [sic] best to accommodate Mother and to
ensure she had assistance even when she desired to represent
herself pro se.” DHS further asserted that “until the time
Mother's parental rights were terminated, she had access to the
court's records and files and any appeal would have been
predicated upon the record up to the point of such
termination.”“

DHS argued that, “[a]t all relevant times herein Mother
had competent representation, in that the court appointed counsel
for Mother, or permitted Mother to proceed pro se if she could or
appointed standby counsel to assist Mother in her case up and
through the permanent plan hearing trial.” DH5 further argued
that “Rule 60(b) should be used only where the relief will
further justice without adversely affecting substantial rights of
the parties. . . . it is clear the relief sought by this motion
would adversely affect the child’s substantial rights, and
justice would not be served.”

On April 24, 2007, more than two years after the filing
of its Termination Order, the family court held a hearing on
Mother's motion. The court denied the motion and all relief
therein requested. The family court issued its written order on

May 8, 2007, finding:

“ As discussed further, supra, it appears that Mother had full
access to the court records in this case until a September 28, 2006 hearing
before the family court, following which the family court issued its
November 9, 2006 order restricting prospectively Mother's access to court
records,

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A. As to Mothers [sic] claim that Mother lacked
representation, the record clearly reflects that both
Judges involved in this case made great effort to have
Mother represented throughout the proceedings. The
court accommodated Mother when she requested to have
her counsel discharged and had standby counsel
appointed to assist Mother throughout the case, all of
which is reflected in the court's prior ruling
contained in it's Findings of Fact, Conclusions of Law
and Order filed March 11, 2005;

B. The court adopts all of the facts, law and reasons
cited in DHS' Memorandum in Opposition [tb Mother's
motion]

On June 7, 2007, Mother filed a Notice of Appeal of the
family court's May 8, 2007 order denying relief.
D. ICA Appeal

1n her Opening Brief to the 1CA, Mother, citing Mathews
v. Eldridge, 424 U.S. 319 (1976) and Lassiter v. Department of
Social Services, 452 U.S. 18 (1981), argued that the family court
denied her constitutional due process rights by failing to
provide her with competent counsel. Mother further argued that,
because she did not have appointed counsel until “a mere 12 days
before [Mother's] appeal period would run. . . . she lost her
opportunity to have evidence reconsidered and effectively lost
her right to file a timely appeal.” Mother also argued that, by

refusing to allow her to review the confidential records in this

'case, the family court deprived her of her due process right to a

fair trial. Mother requested that the matter be remanded for “a
new trial with competent counsel present at all stages of her new
proceeding to prove that she is a competent and fit parent that

has the ability to provide a safe family home.” (Emphasis in

_25_

***FoR PUBLICATMN IN wEsT's HAWAI‘: REPoRTs AND PAcIFIc REPQRTER***

original).

1n its Answering Brief, DHS argued that the family
court did not abuse its discretion in its May 8, 2007 order
denying relief. DHS argued that Mother's February 6, 2007 motion
was not timely, because “it was not filed within one (1) year of
the March 11, 2005 order terminating Mother's parental rights.”
DHS further argued that “there was no new evidence which would
serve as a basis to re-open the case[,]” and that “Mother failed
to present new evidence and/or arguments that could not have been
presented at trial[.]”

DHS also argued that Mother's assertion that she was
denied access to the record was without merit, because “the court
did not prohibit Mother's access to records until September 28,
2006, . . . which was a year and a half after her parental rights
were terminated, and six months beyond the time Mother would be
permitted to file a Rule 60, HFCR motion . . . .” Finally, DHS
argued that the analysis of Eldridge and Lassiter was
inapplicable, because Mother “had counsel at all times during the
pendency of this case[,]” and because she could not demonstrate
substantial prejudice. 1n response to Mother's claim that she
was denied time for her appellate counsel to file an appeal, DHS
argued that “based upon the facts, it is Mother's own actions
which caused a delay.”

Mother subsequently filed a Reply Brief arguing:

Her attorney selected by the trial court was appointed
so late that it was clearly foreseeable that the 30

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day appeal period would run. The responsibility in
initially correcting this problem laid with Judge
Gaddis, who initiated and created the problem at
Mother's expense. . . . Judge Gaddis could have made
the appointment of new counsel while extending the due
date to file a Notice of Appeal. 1nstead, he made a
very late appointment of new counsel and jeopardized
the legal and appeal interests of Mother. The trial
judge not only filed an order against Mother, he
failed to also protect Mother's concomitant due
process interests in ensuring that she would be able
to timely file a new Notice of Appeal. This is a
clear violation of the due process rights of Mother
that was easily preventable by the trial court.

(Emphasis in original).

Mother further asserted that “[a]s the trial court is
responsible for timely appointing counsel, the court could have
very easily extended the appeal due date or forewarned counsel of
a pending notice of appeal due date.” (Emphasis in original).

1n its April 9, 2009 Summary Disposition Order (SDO),
the 1CA concluded that “the [f]amily [c]ourt did not err in
declining to grant Mother relief based on ineffective assistance
of counsel.” 1n re RGB, No. 28582, 2009 WL 953392 at *2 (App.
Apr. 9, 2009). The 1CA further noted that “[f]rom Mother's
point-of-view, this appeal concerns the termination of her
parental rights with respect to her child . . . . However, the
1ermination Order is not before the court on this appeal.” 1d;
at *l.

with regard to Mother's claim of ineffective assistance

of counsel during the pre-termination period, the 1CA noted:

Mother fails to identify with specificity, however, at
which points in the case that she was
unconstitutionally deprived of access to competent
counsel. 1t appears from the record that Mother was
represented by appointed counsel or standby consulting
counsel at all hearings leading up to the Termination

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PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

1d. at *2.

1CA noted:

Id.

Order. More importantly, Mother does not
identify any specific error or omission of counsel
during the events and proceedings which culminated in
the Termination Order.

with respect to the post-termination time frame, the

[T]his court is troubled by the impact of the
Termination Order's immediate discharge of Mother's
standby attorney, particularly in light of the
[f]amily [c]ourt’s assessment of Mother's mental
health status That said, Mother has not
identified to this court a single “appealable issue”
that could have been raised had counsel preserved her

rights to an appeal from the Termination Order.

The ICA concluded by stating:

the standard that is applied
of appellate

1n this case,
meritorious basis
a motion to

we consider, by analogy,
to claims of ineffective assistance
counsel in criminal matters. .
Mother has failed to even suggest a
upon which counsel could have filed
reconsider and could have raised on appeal from the
Termination Order. For these reasons, we conclude
that the Family Court did not err in declining to
grant Mother relief based on ineffective assistance of
counsel.

(Citation omitted).

with regard to Mother's claim that her due process

rights were violated by being denied access to the record in this

case, the

lCA held:

This limitation appears to be supported by HRS §
587-73(b)(4) (2006) and is grounded in the Family
Court's prior final decision that Mother had no
further parental rights or interests in the ,
proceedings. Mother has not informed this court of
any documents or category of documents that she
reasonably requested access to or why she needs full
access to the post-November 6, 2006 record in this
case. Mother has failed to identify any prejudice
stemming from this limitation. we conclude that
the Circuit Court did not err in limiting Mother's
access to the post-November 6, 2006 confidential

._28_

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record in this case.
1d; at *3.

The 1CA filed its judgment affirming the family court's
May 8, 2007 order on May 21, 2009. Mother timely filed an
application for writ of certiorari on August l3, 2009. DHS filed
its response on August 28, 2009.

1n her application, Mother “requestfed] the Court to
apply or formulate a family court standard of the correct remedy
for ‘ineffective assistance of counsel' and if found, to grant a
new trial.” Mother further asserted that “[i]t is legally
impossible to raise any points until the records are released for
review.”

1n its Objection, DHS argued that the 1CA's analogy to
the criminal standard for ineffective assistance of counsel was
appropriate. DHS further argued that Mother had full access to
all records upon which an appeal would have been based.

I1. Standard of Review

The family court's denial of a motion under HFCR Rule
60(b)(6) is reviewed for abuse of discretion. Pratt v. Pratt,
104 Hawafi 37, 42, 84 P.3d 545, 550 (2004). AS the ICA noted in

Hayashi v. Hayashi, 4 Haw. App. 286, 666 P.2d 171 (1983):

[s]ince Rule 60(b)(6) relief is contrary to the
general rule favoring finality of actions, the court
must carefully weigh all of the conflicting
considerations inherent in such applications. Once
the court has made a determination to grant or deny
relief, the exercise of its discretion will not be set
aside unless the appellate court is persuaded that,
under the circumstances of the case, the court abused
its discretion.

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1Q4 at 291, 666 P.2d at 175 (citations omitted).

An “abuse of discretion occurs where the trial court
has clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant.” Buscher v. Boning, 114 HawaFi 202, 211, 159
P.3d 814, 823 (2007) (quoting Office of Hawaiian Affairs v.
State, ll0 HaWaiT_338, 35l, 133 P.3d 767, 780 (2006)). In
addition, “[t]he burden of establishing abuse of discretion is on
appellant, and a strong showing is required to establish it.”
State v. HintOn, 120 Hawafi 265, 273, 204 P.3d 484, 492 (2009)
(quoting State v. wong, 97 HawaFi 512, 517, 40 P.3d 914, 919
(2002)).

III. Discussion

1n Mother's February 6, 2007 motion, Mother asserted
that she was deprived of effective assistance of counsel in both
the pre- and post-termination proceedings, in violation of her
due process and equal protection rights under the United States
and HawaFi Constitutions. For the reasons set forth below, we
construe Mother's motion as a HFCR Rule 60(b)(6) motion for
relief and conclude that the family court did not abuse its
discretion in denying the motion.

A. The family court properly concluded that Mother had a due
process right to appointed counsel during the termination
proceedings

The United States Constitution does not require the

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appointment of counsel in all proceedings involving the potential

for termination of parental rights. Lassiter, 452 U.S. at 31.
Rather, due process requires that “[a] parent’s interest in the
accuracy and justice of the decision to terminate his or her
parental status” be balanced against the State's interest in the
welfare of the child and the economy of the proceedings, as well
as against the risk that “a parent will be erroneously deprived
of his or her child because the parent is not represented by
counsel.” 1d4 at 27-28 (citing Eldridge, 424 U.S. at 335). 1n

Lassiter, the Court held that:

[t]he dispositive question . . . is whether the three
Eldridge factors,[“] when weighed against the
presumption that there is no right to appointed
counsel in the absence of at least a potential
deprivation of physical liberty, suffice to rebut that
presumption and thus to lead to the conclusion that
the Due Process Clause requires the appointment of
counsel when a State seeks to terminate an indigent's
parental status.

1d4 at 31.

This court has not determined whether article 1,
section 5 of the HawaFi Constitution affords parents a due
process right to counsel in all termination proceedings."
However, in 1n re Doe, 99 Hawafi 522, 533, 57 P.3d 447, 458

(2002) (citation omitted), we held that article 1, section 5 of

“ 1n determining what due process requires under Eldridge, the court
must consider “the private interests at stake, the government's interest, and
the risk that the procedures used will lead to erroneous decisions.” See

Lassiter, 452 U.S. at 27.
17 Article 1, section 5 of the HawaFi Constitution provides that

“[n]o person shall be deprived of life, liberty or property without due
process of law, nor be denied the equal protection of the laws[.]”

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the Hawafi Constitution provides parents a “substantive liberty
interest in the care, custody, and control of their children,”
independent of the United States Constitution, and that the state
must provide parents “a fair procedure” for the deprivation of
that liberty interest,

1n QQ§, we concluded that “parents who are in need of
an interpreter because of their inability to understand English
are entitled to the assistance of one at any family court hearing
in which their parental rights are substantially affected.” ldé
at 526, 57 P.3d at 451. we further concluded that the
determination of whether parental rights are substantially
affected, such that due process is implicated, must be made on.a
case-by-case basis. ld4 at 534, 57 P.3d at 459 (citing Lassiter,
452 U.S. at 32).

Under the circumstances of Qg§, however, we concluded
that the Appellant-Mother had failed to demonstrate her need for

an interpreter, and failed to demonstrate that she was

“substantially prejudiced” by the absence of an interpreter. 1d.

at 526, 57 P.3d at 451. Accordingly, we affirmed the order of
the circuit court, which granted foster custody of the children
to DHS. lQ4
1n 1n re “A” Children, 119 Hawaii 28, 46, 193 P.3d

1228, 1246 (App. 2008), the 1CA noted that the appointment of
counsel remains discretionary under HRS § 587-34, which provides,

in pertinent part:

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Guardian ad litem; court appointed counsel. (a) The
court shall appoint a guardian ad litem for the child
to serve throughout the pendency of the child
protective proceedings under this chapter. The court
may appoint additional counsel for the child pursuant
to subsection (c) or independent counsel for any other
party if the party is an indigent, counsel is
necessary to protect the party's interests adequately,
and the interests are not represented adequately by
another party who is represented by counsel.

HRS § 587-34 (2006)(emphasis added).

The 1CA therefore applied the case-by-case approach
adopted in Lassiter, and concluded that a father was deprived of
his due process right to appointed counsel under the United
States Constitution, where counsel was not appointed until two
weeks before the termination proceedings. 119 Hawafi at 59-60,
193 P.3d at 1259-60. Although the 1CA expressed “grave concerns”
about the case-by-case approach, it declined to adopt a bright-
line rule requiring appointment of counsel for indigent parents
in all termination proceedings. lQy

1n this case, the family court immediately appointed
counsel upon Mother's initial application. Thereafter, Mother
was represented at all times by counsel or standby counsel,
except when Mother expressly requested to proceed pro se, and
during the period between March 11, 2005 (when the family court
discharged Iopa in its Termination Order) and March 28, 2005
(when the family court appointed Yonemori). Thus, in electing to

appoint counsel, it appears that the family court applied the

Lassiter balancing test, and concluded that the balance of

interests required that counsel be appointed for Mother in order

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to satisfy the demands of due process under the United States
Constitution. we conclude, with respect to those aspects of the
proceedings that Mother seeks to challenge here, that the family
court's determination was correct given the risk that failure to
appoint counsel would lead to an erroneous decision. §e§
Lassiter, 452 U.S. at 27.
Because the family court properly determined that

Mother had a right to counsel under the United States
Constitution, we decline to reach the question of whether the
HawaFi Constitution provides indigent parents a right to counsel

in all termination proceedings.“

B. HFCR Rule 60(b)(6) is, in the circumstances of this case, a
proper vehicle for raising ineffective assistance of counsel
in proceedings concerning the termination of parental rights

This appeal requires us to consider whether HFCR Rule
60(b)(6) (hereinafter “Rule 60(b)(6)”) is an appropriate vehicle
for raising ineffective assistance of counsel in proceedings
concerning the termination of parental rights. we note at the
outset that Mother's February 6, 2007 motion to the trial court,
styled a “Motion for 1) New Trial and/or 2) to Reconsider and/or
Amend Judgment and/or All Previous Orders, and/or 3) for Release

of all Evidence or Files in Case, and/or 4) for Dismissal[,]”

“ we therefore respectfully disagree with the dissent's assertion
that we hereby “den[y] indigent persons access to justice in parental
termination actions” or that we have adopted a “discretionary appointment
approach[.]” Dissenting Opinion at 1, 46. we recognize instead that, because
the family court properly determined that Mother had a due process right to
appointed counsel under the U.S. Constitution, the determination of what
protections the Hawafi Constitution provides to indigent parents is not
properly before us.

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stated only that she sought relief pursuant to HFCR Rule 7(b),
which is a general rule regarding pleadings and the form of
motions. However, in Mother's Opening Brief to the 1CA, she
asserted that the “standard of review for a denial of a motion
for post-decree relief is the abuse of discretion standard.” 1n
her Reply Brief, Mother described the “motion herein” as one
under Rule 60(b). Because a Rule 60(b)(6) motion appears to have
been the only motion for post-decree relief available to Mother
under the applicable rules,” and because the family court and
the 1CA both appeared to construe Mother's motion as a Rule
60(b)(6) motion, we review Mother's assertions under the
principles applicable to Rule 60(b)(6) motions.
1. Principles applicable to HFCR Rule 60(b)(6) motions
“Rule 60(b)(6) permits the trial court in its sound
discretion to relieve a party from a final judgment.” Hayashi, 4
Haw. App. at 290, 666 P.2d at 174 (citing 1semoto Contracting Co.

V. Andrade, l Haw. App. 202, 205, 616 P.2d l022, 1025 (l980)).

w At the time the Termination Order was filed, it was subject to
appeal only following the family court's decision on a motion for
reconsideration, which was required to be filed within twenty days of the

entry of the order. HRS § 571-54 (2005). However, a 2006 amendment to HRS §
571-54, which was designed to “speed the resolution of child protective
services cases,” eliminated the requirement that a motion for reconsideration

precede an appeal. S. Stand. Comm. Rep. No. 2245, in 2006 Senate Journal, at
1132. Nevertheless, HFCR Rule 72(b) requires that a notice of appeal be filed
within 30 days of a final decision or order. Accordingly, a direct appeal was
not available to Mother at the time she filed her February 6, 2007 motion.

Similarly, a motion for new trial was no longer available to Mother,
because HFCR Rule 59(b) requires that a motion for new trial be made within 10
days after the entry of judgment. 1n addition, a motion for relief from
judgment under Rule 60(b)(1), (2), or (3) must be made not more than one year
following judgment, and thus was no longer available to Mother. Finally,
although relief under Rule 60(b)(4) and (5) is not subject to the one-year
limitation, those rules do not appear to have been applicable to Mother's
circumstances.

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HFCR Rule

(Emphasis

for bringing a HFCR Rule 60(b)(6)

60(b) provides, in pertinent part:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from any or all of the provisions of a final judgment,
order, or proceeding for the following reasons: (l)
mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud . . . ,
misrepresentation, or other misconduct of a adverse
party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or

§6§ any other reason justifying relief from the
operation of the judgment. The motion shall be made

within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment,
order, or proceedings was entered or taken.

added).
Although this court has not addressed the requirements

motion, the 1CA has explained

that, under HFCR Rule 60(b)(6), a movant must meet three

threshold requirements:

the movant must show that (1) the motion is based on
some reason other than those specifically stated in
clauses 60(b)(1) through (5); (2) the reason urged is
such as to justify the relief; and (3) the motion is
made within a reasonable time.

The first requirement is self-explanatory and
merely indicates that subsection (6) is a residual
clause to provide relief for considerations not
covered by the preceding five clauses. The second
requirement means that the movant must prove that
there are exceptional circumstances justifying relief.

The third requirement calls for diligence by the
moving party. Although Rule 60(b)(6) motions are not
subject to the one-year limitation, they must be ‘
brought within a reasonable time. what constitutes a
“reasonable time” is determined in the light of all
attendant circumstances, intervening rights, loss of
evidence, prejudice to the adverse party, the
commanding equities of the case, and the general
policy that judgments be final.

Since Rule 60(b)(6) relief is contrary to the
general rule favoring finality of actions, the court
must carefully weigh all of the conflicting
considerations inherent in such applications.

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Hayashi, 4 Haw. App. at 290-91, 666 P.2d at 174-5 (internal
citations omitted).

In Hayashi, the 1CA considered whether a six-year delay
in filing a Rule 60(b)(6) motion was justified by any
“exceptional circumstances” which would “mitigate the lengthy
delay in bringing the motion.” 4 Haw. App. at 291, 666 P.2d at
175. Hayashi involved wife's allegation that Husband's coercion
led her to execute a property settlement agreement (PSA) upon
their divorce. 1g. at 288, 666 P.2d at 173. 1n her HFCR Rule
60(b)(6) motion seeking relief from the PSA, wife claimed that
“before and after execution of the PSA and entry of the decree,
Husband exerted extreme influence over her so that she was acting
under coercion and emotional duress when she signed the PSA[,]”
and that “her dominated situation created the extraordinary
circumstances justifying relief.” 1g. at 291, 666 P.2d at 175.

The family court found no evidence of extraordinary
circumstances in the record to justify wife's six-year delay in
filing an HFCR Rule 60(b)(6) motion. 1g. The 1CA agreed, and
noted that wife had failed to prove the existence of
extraordinary circumstances because she had been represented at
all times by legal counsel who was able to protect her from any
coercive action, and because she had consulted with several other
lawyers prior to signing the PSA. 1g. Thus, while a six-year
delay in filing a Rule 60(b)(6) motion was not per se

unreasonable, wife's motion was deemed untimely. lg.

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Accordingly, the 1CA held that the family court did not abuse its
discretion in denying wife's motion. 1gg

Moreover, in Nakata v. Nakata, 3 Haw. App. 51, 56, 641
P.2d 333, 336 (App. l982), the ICA held that HFCR Rule 60(b)(6)
“should be used only where the relief will further justice
without adversely affecting substantial rights of the parties.”
(citing 11 Charles Alan wright & Arthur R. Miller, Federal
Practice and Procedure: Civil §§ 2857, 2864 (1st ed. 1973)). The
1CA further held that HFCR Rule 60(b) is not intended to
“reliev[e] a party from free, calculated, and deliberate choices
he, she, or it has made.” lgg at 56, 641 P.2d at 336 (citing 11
Charles Alan wright & Arthur R. Miller, Federal Practice and
Procedure: CiVil § 2864 (lSt ed. l973); 46 Am. Jur. 2d,
Judgments, § 688 (1969)).

1n what the 1CA construed to be a HFCR Rule 60(b)
motion, igg at 55, 641 P.2d at 336, wife sought relief from a
divorce decree that gave Husband the option to purchase the
marital residence at the conclusion of a six-month period if wife
failed to comply with a payoff provision, igy at 52-53, 641 P.2d
at 334-35. wife argued that “the court had the power to and
should extend the six months to allow her to purchase the house
upon the favorable terms stated in the decree[,l” ig. at 53, 641
P.2d at 335, and the family court granted her relief. lQg at 53-
54, 641 P.2d at 335. However, the 1CA deemed wife's HFCR Rule

60(b) claim “excessive,” and concluded that the family court

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abused its discretion in granting wife relief. lg. at 51, 56,
641 P.2d at 334, 336.

2. The use of Rule 60(b)(6) as a vehicle to raise
ineffective assistance of counsel in termination of
parental rights cases

A majority of states now routinely appoint counsel for
indigent parents in termination of parental rights cases, and
have concluded that the right to counsel includes a right to
effective counsel. §§g Susan Calkins, Ineffective Assistance of
Counsel in Parental-Rights Termination Cases: The Challenge for
Appellate Courts, 6 J. App. Prac. & Process 179, 193-99 (2004).
However, state courts have struggled to determine the proper
procedural vehicle for raising ineffective assistance of counsel
in termination of parental rights proceedings. §gg igy at 199.

A majority of jurisdictions has concluded that direct
appeal is the most appropriate method for raising ineffective
assistance of counsel in termination proceedings, due to the
particular need for expeditious resolution and finality in child

custody disputes. See, e.g., State ex rel. Juvenile Dep’t of

Multnomah County v. Geist, 796 P.2d 1193, 1201 (Or. 1990); 1n re

James W.H., 849 P.2d lO79, 1080 (N.M. Ct. App. l993); N.J. Div.
of Youth & Family Servs. v. B.R., 929 A.2d 1034, 1040 (N.J.
2007). where an appeal of an order terminating parental rights
has not been timely filed, some jurisdictions allow for an
enlargement of the time for filing an appeal upon a showing of

good cause. See, e.g., 1n re A.J., 143 P.3d 1143, 1146 (Colo.

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ct. App. 2006).

California allows a parent to raise ineffective
assistance of counsel in a petition for a writ of habeas corpus.
1n re Paul w., 60 Cal. Rptr. 3d 329, 333 (Cal. Ct. App. 2007)
(citing 1n re Kristin H., 54 Cal. Rptr. 2d 722, 725 (Cal. Ct.
App. 1996)). However, other jurisdictions have concluded that
habeas corpus is not the appropriate vehicle to collaterally
attack a judgment terminating parental rights on the basis of
ineffective assistance of counsel because it would increase
uncertainty in child custody proceedings and thereby limit the
possibility of adoption. See e. ., 1n re Jonathan M., 764 A.2d
739, 751-52 (Conn. 2001); see also Lehman v. Lvcoming CountV
Children's Serv.s. ACIenCV, 458 U.S. 502, 513-14 (l982) (holding
that federal habeas corpus may not be used to litigate
constitutional issues in child-custody matters because “[t]he
State's interest in finality is unusually strong in child-custody
disputes. The grant of federal habeas would prolong uncertainty
for children . . . possibly lessening their chances of
adoption.”).

Finally, some jurisdictions allow a claim of
ineffective assistance of counsel to be raised under rules
similar to HFCR Rule 60(b)(6). See Ex parte E.D., 777 So.2d 113
(Ala. 2000); 1n re Georgette, 768 N.E.2d 549, 557 (Mass. App. Ct.
2002). 1n Ex parte E.D., the Alabama Supreme Court held that “a

[Alabama Rules of Civil Procedure (ARCP)] Rule 60(b) motion,

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under certain circumstances, . . . can be an appropriate means by
which a parent facing the termination of parental rights can
present claims of ineffective assistance of appointed counsel.”
777 So.2d at 116. 1n that case, a mother's parental rights were
terminated, and her trial counsel subsequently withdrew from the
case. 1Qp at 114. The court appointed a new attorney for the
purpose of appeal and, on appeal, the Alabama Court of Civil
Appeals affirmed the termination order. 1gp Less than 60 days
later, the mother filed a motion pursuant to ARCP Rule 60(b)(6),
alleging ineffective assistance of trial counsel. 1gy

ARCP Rule 60(b)(6) is nearly identical to HFCR Rule
60(b)(6), and “permits a civil litigant to collaterally attack a
civil judgment” within a “reasonable time.” 1gp at 116. The

A1abama Supreme Court concluded that:

[w]hat constitutes a “reasonable time” depends on the
facts of each case, taking into consideration the
interest of finality, the reason for the delay, the
practical ability to learn earlier of the grounds
relied upon, and the prejudice to other parties.

1gy (quoting Ex parte w.J., 622 So.2d 358, 361 (Ala. 1993)
(quotation marks omitted)).
weighing the “drastic effect of the termination of

parental rights against the need for finality in the ultimate
disposition of questions regarding parental rights[,]” the
Alabama Supreme Court held that the mother's Rule 60(b)(6)
motion, filed within 60 days of the appellate court's judgment

affirming the termination order, was filed within a “reasonable

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time.” lgp
1n contrast, in 1n re Georgette, the Appeals Court of

Massachusetts noted that a motion raising ineffective assistance
of trial counsel and made pursuant to Massachusetts Rule of Civil
Procedure (MRCP) Rule 60(b)(6) “should be granted only in
extraordinary circumstances, which are not present when the
allegedly aggrieved party could have reasonably sought relief by
means of direct appeal.” 768 N.E.2d at 557. 1n that case, a
father's parental rights were terminated, and his two daughters
brought a MRCP Rule 60(b)(6) motion for a new trial, alleging
that their appointed trial counsel was ineffective. 1gy at 551.
Although the court did not expressly reject MRCP Rule 60(b)(6) as
a vehicle for raising ineffective assistance of counsel, it
rejected the daughters' motion as an “improper effort to obtain

relief.” 1d. at 557. The court further noted that:

1f cases are to have finality, the operation of rule
60(b) must receive “extremely meagre scope.” Rule 60
is to litigation what mouth-to-mouth resuscitation is
to first aid: a life-saving treatment, applicable in
desperate cases, Achieving finality and minimizing
delay and uncertainty are appropriate considerations
when acting on any rule 60(b) motion; they are prime
considerations . . . when the rights, interests, and
welfare of children in custody and adoption
proceedings are involved.

1d. at 557-558 (quotation marks, ellipses and citations omitted).
Recognizing that Mother cannot pursue any other avenue
of relief here, we conclude that Rule 60(b)(6) was an appropriate

vehicle for raising ineffective assistance of counsel in the

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circumstances of this case.”

C. we will review claims of ineffective assistance of counsel
in termination of parental rights cases to determine whether
fundamental fairness was compromised

State courts have also applied varying tests for
determining whether appointed counsel in a termination of
parental rights case was ineffective. A majority of states has
adopted the standard for ineffective assistance of counsel in
criminal cases that was announced in Strickland v. washington,
466 U.S. 668, 687 (1984): “First, the defendant must show that
counsel's performance was deficient. . . . Second, the defendant
must show that the deficient performance prejudiced the

defense.”“ See, e.g., State v. T.L., 751 N.w.2d 677, 685 (N.D.

” we note that RGB has not yet been adopted, and that this case is
distinguishable from one in which adoption has already occurred. Our
conclusion therefore does not authorize a challenge to the termination of
parental rights based on ineffective assistance of counsel in a case where
adoption of the child has already taken place.

m 1n State v. Antone, 62 Haw. 346, 615 P.2d 101 (1980), we
articulated the standard under the Hawafi constitution for reviewing
ineffective assistance of counsel claims in criminal cases as follows:

The burden of establishing ineffective assistance of
counsel rests upon the appellant. His burden is
twofold: First, the appellant must establish specific
errors or omissions of defense counsel reflecting
counsel's lack of skill, judgment or diligence.
Second, the appellant must establish that these errors
or omissions resulted in either the withdrawal or
substantial impairment of a potentially meritorious
defense.

;gp at 348-49, 615 P.2d at 104 (citations omitted); ppg Dan v. State, 76
Hawafi 423, 427, 879 P.2d 528, 532 (1994) (“no showing of ‘actual' prejudice
is required to prove ineffective assistance of counsel” in a criminal case)
(quoting Briones v. State, 74 Haw. 442, 464, 848 P.2d 966, 977 (1993)).

with regard to ineffective assistance of appellate counsel in the
criminal context, this court has held that, “[i]f . . . an appealable issue is
omitted as a result of the performance of counsel whose competence fell below
that required of attorneys in criminal cases then appellant’s counsel is
constitutionally ineffective.” Briones, 74 Haw. at 467, 848 P.2d at 978.
where appellate counsel's ineffectiveness results in the failure to timely

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2008); N.J. Div. of Youth & Family Servs. v. B.R., 929 A.2d 1034,
1038 (N.J. 2007); In re C.H., 166 P.3d 288, 290-91 (Colo. Ct.
App. 2007). Aside from cases in which prejudice is presumed,”
courts applying the Strickland standard in termination of
parental rights cases rarely find ineffectiveness. Calkins, 6 J.
App. Prac. & Process at 215.

Other jurisdictions apply the “fundamental fairness”
test announced in State ex rel. Juvenile Department of Multnomah
County v. Geist, 796 P.2d 1193, 1204 (Or. 1990), which required a
mother whose parental rights were terminated to show “not only
that her trial counsel was inadequate, but also that any
inadequacy prejudiced her cause to the extent that she was denied
a fair trial and, therefore, that the justice of the circuit
court's decision is called into serious question.” 1n declining
to apply the Strickland standard, the Q§i§p court distinguished
juvenile court proceedings from adult criminal proceedings,
noting that “[t]here simply is no compelling reason that the same
standards applied in adult criminal cases also should be applied

in juvenile cases.” 1d. at 1202; see also Baker v. Marion County

file a notice of an appeal, this court has, under certain circumstances,
“relax[ed] the deadline for filing a notice of appeal.” State v. Shinyama,
101 Hawai‘i 389, 393 1'1.6, 69 P.3d 517, 521 n.6 (2003); see also State V.
Caraballo, 62 Haw. 309, 316, 615 P.2d 91, 96 (1980) (permitting a late-filed
appeal where defendant had withdrawn his initial appeal based on counsel's
erroneous advice).

” For example, the Court of Appeals of Kansas has held that an
attorney's withdrawal mid-trial constituted a complete denial of counsel, and
therefore prejudice was presumed. 1n re Rushing, 684 P.2d 445, 450 (Kan. Ct.
App. 19B4). As discussed further, infra, failure to file a notice of appeal
in a criminal proceeding may be per se prejudicial under certain
circumstances.

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Office of Family & Children, 810 N.E.2d 1035, 1039 (1nd. 2004)
(“we conclude that transporting the structure of the criminal
law, featuring as it does the opportunity for repeated re-
examination of the original court judgment through
ineffectiveness claims and post-conviction processes, has the
potential for doing serious harm to children whose lives have by
definition already been very difficult”). we note that Mother,
in her application, also urged this court to “apply or formulate
a family court standard of the correct remedy for ‘ineffective
assistance of counsel.’”
1n the criminal context, the United States Supreme

Court has further refined the test for ineffective assistance of
counsel, where counsel has failed to file a notice of appeal.

Roe v. Flores-Ortega, 528 U.S. 470 (2000). 1n Flores-Ortega, the
defendant pleaded guilty to second-degree murder, and was
sentenced to 15 years to life in state prison. 1gp at 473-74.
Flores-Ortega was informed by the trial judge that he could file
an appeal within 60 days following sentencing, and that counsel
would be appointed to represent him on appeal if he was indigent.
ldp at 474. However, Flores-Ortega's appointed counsel failed to
file a notice of appeal, and Flores-Ortega himself was unable to
communicate with counsel during the first 90 days following
sentencing. ;gp After Flores-Ortega’s pro se attempt to file a
belated notice of appeal was rejected, he filed a federal habeas

petition alleging that his counsel's failure to file a notice of

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appeal on his behalf constituted constitutionally ineffective
assistance of counsel. 1gp The district court adopted the
Magistrate Judge’s findings and recommendations and denied
Flores-Ortega’s petition. 1gp at 475. Flores-Ortega appealed.
1gy The United States Court of Appeals for the Ninth Circuit
reversed, and certiorari was granted. ;gp at 475-76.

The United States Supreme Court held that the
Strickland test applies to claims of ineffective assistance of
counsel arising out of counsel's failure to file a notice of
appeal. 1gp at 476-77. The Court then addressed the
circumstances under which the failure to file a notice of appeal
would be considered to fall “below an objective standard of
reasonableness.” 1g. at 476-78 (quoting Strickland, 466 U.S. at
688). The Court emphasized that “a lawyer who disregards
specific instructions from the defendant to file a notice of.
appeal acts in a manner that is professionally unreasonable.”
1gp at 477. However, the Court declined to establish a bright-
line rule deeming it per se deficient to fail to “file a notice
of appeal unless the defendant specifically instructs otherwise.”

1d. at 478. Rather, the Court held that:

counsel has a constitutionally imposed duty to consult
with the defendant about an appeal when there is
reason to think either (1) that a rational defendant
would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to
counsel that he was interested in appealing.

Id. at 480.

with regard to the prejudice prong, the Court concluded

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that the “denial of the entire judicial proceeding itself,” which
resulted from counsel's failure to file a notice of appeal, was
presumptively prejudicial. lgp at 483. However, the Court held
that the Strickland standard required that “counsel's deficient
performance must actually cause the forfeiture of the defendant's

appeal.” 1d. at 484. The Court further held that:

[i]f the defendant cannot demonstrate that, but for
counsel's deficient performance, he would have
appealed, counsel's deficient performance has not
deprived him of anything, and he is not entitled to
relief.

The Court further noted that:

As with all applications of the Strickland test, the
question of whether a given defendant has made the
requisite showing will turn on the facts of a
particular case. Nonetheless, evidence that there
were nonfrivolous grounds for appeal or that the
defendant in question promptly expressed a desire to
appeal will often be highly relevant in making this
determination.

1gy at 485 (citation omitted).

Applying this analysis to the facts of Flores-Ortega's
case, the Court concluded that “the Magistrate Judge's findings
do not provide us with sufficient information to determine
whether [defense counsel] rendered constitutionally inadequate
assistance.” 1gg at 487. The Court further noted:

Assuming, arguendo, that there was a duty to consult
in this case, it is impossible to determine whether
that duty was satisfied without knowing whether
[defense counsel] advised [Flores-Ortega] about the
advantages and disadvantages of taking an appeal and
made a reasonable effort to discover his wishes.
Based on the record before us, we are unable to
determine whether [defense counsel] had a duty to
consult with [Flores-Ortega] (either because there
were potential grounds for appeal or because [Flores-
Ortega] expressed interest in appealing), whether she

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satisfied her obligations, and, if she did not,
whether [Flores-Ortega] was prejudiced thereby.

;gp at 437.

In In re A.J., 143 P.3d 1143 (Colo. Ct. App. 2006), the
Colorado Court of Appeals considered the effect of the holding in
Flores-Ortega on a claim of ineffective assistance of counsel in
a termination of parental rights case, in the context of
determining whether to accept a late-filed notice of appeal. The
mother timely communicated her decision to appeal the termination
order to her counsel, who filed an untimely notice of appeal of
the family court4s termination order. 1gp at 1149. The court
noted that the mother filed her notice of appeal just over six
weeks after the family court entered its termination order,
“within nine months after the child’s removal from the home,
[and] three months before the [expedited permanency planning
(EPP)] deadline for permanent placement of the child.” 1dp The
court noted that the statutory framework for EPP cases requires
that the child “be placed in a permanent home within twelve
months of his [or her] initial placement out of the home[,]” and
characterized the length of delay in this case as “relatively
short.” ldp

The court concluded that “counsel's failure to file a
timely notice of appeal after mother told him she wanted to
appeal the termination order amounts to ineffective assistance of
counsel.” ldp However, under Colorado law, the mother was also

required to demonstrate good cause warranting reinstatement of

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the right to appeal. 1gp Because the mother had advised her
counsel that she wished to appeal, the court concluded that she
did not contribute to the delay in filing the appeal and, under
the specific circumstances of the case, there was good cause for
extending the appeal deadline. lgp at 1150. However, the court

noted that:

if any one of the circumstances in this case were
different, we may have reached a different result. 1n
particular, we might have been inclined to dismiss the
appeal if the untimely filing of the notice of appeal
were attributable to mother's carelessness or
inaction, or if the delay had been longer or exceeded
the EPP deadline for permanent placement of the child,

Finally, some federal courts have declined to extend
the holding in Flores-Ortega to other civil contexts in which due
process requires the effective assistance of counsel. 1n
Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001), the Court of
Appeals for the First Circuit noted that counsel's incompetence
during immigration proceedings, which are civil in nature, “may
make the proceeding fundamentally unfair and give rise to a Fifth
Amendment due process objection.” 1gp at 55 (emphasis in
original). Hernandez's counsel had filed a timely notice of
appeal of Hernandez's deportation order with the Board of
1mmigration Appeals (Board) but failed to brief the issues on
appeal, resulting in the appeal being dismissed. 1Qp at 52-53.
Hernandez had the option to appeal the Board's decision, but his
counsel failed to do so, 1Qg at 53. Almost four years later,
Hernandez was issued a letter directing him to appear for

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deportation, and Hernandez then filed a petition for a writ of
habeas corpus with the district court and a motion to reopen his
case with the Board, alleging ineffective assistance of counsel.
;gp at 53.

The First Circuit noted that:

were this a criminal case, counsel's failure to comply
with a defendant's request to appeal would be treated
as prejudice ppg §g. But we are unwilling, unless
directed to do so, to incorporate into civil
deportation proceedings the whole apparatus of Sixth
Amendment precedent. Our concern in the immigration
context is not with the Sixth Amendment but with
preserving a fair opportunity to have a waiver
considered; it does not include an opportunity to tie
up deportation proceedings in knots through collateral
attacks on defects that would not plausibly have
altered the result.

1gy at 57 (citations omitted; emphasis added).

Moreover, the First Circuit noted that Hernandez “had
some duty--as a condition of a successful due process claim--to
monitor his lawyer's actions and assure that his appeal was being
pursued[,]” but did not do so. 1gp Accordingly, the First
Circuit affirmed the District Court's dismissal of Hernandez's
habeas petition. lgp

Applying these principles to Mother's case, we hold
that the right to counsel in termination of parental rights
cases, where applicable, includes the right to effective counsel.

we further hold that the proper inquiry when a claim of
ineffectiveness of counsel is raised in a termination of parental
rights case is whether the proceedings were fundamentally unfair

as a result of counsel's incompetence. Cf. Geist, 796 P.2d at

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1203 (“Mother must show, not only that her trial counsel was
inadequate, but also that any inadequacy prejudiced her cause to
the extent that she was denied a fair trial and, therefore, that
the justice of the [trial] court's decision is called into
serious question.”); Baker, 810 N.E.2d at 1041 (“where parents
whose rights were terminated upon trial claim on appeal that
their lawyer underperformed, we deem the focus of the inquiry to
be whether it appears that the parents received a fundamentally
fair trial whose facts demonstrate an accurate determination.”);
Hernandez, 238 F.3d at 57 (“Our concern in the immigration
context is not with the Sixth Amendment but with preserving a
fair opportunity to have a waiver claim considered”). The movant
bears the burden of establishing “not only that her trial counsel
was inadequate, but also that any inadequacy prejudiced her cause
to the extent that she was denied a fair trial and, therefore,
that the justice of the [trial] court's decision is called into
serious question.” ldp at 1204. Although principles developed
in assessing ineffective assistance of counsel claims in the
criminal context may be instructive, they are not dispositive in
the termination of parental rights context, _fp Hernandez, 238
F.3d at 57 (noting that “Sixth Amendment precedent is worth
consulting where counsel's performance is attacked in a
deportation proceeding, but it is not binding and should not be
blindly imported wholesale”).

we adopt a fundamental fairness test, rather than

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importing criminal law concepts directly, for several reasons,
First, the constitutional bases of the respective rights to
counsel are different. The right to counsel in the criminal
context is based on the Sixth Amendment of the United States
Constitution and Article 1, Section 14 of the HawaFi
Constitution. In contrast, the right to counsel in termination

of parental rights proceedings is based on due process. Cf.

Hernandez, 238 F.3d at 57; Anthony C. Musto, Potato, Potahto:

whether Ineffective Assistance or Due Process, An Effective Rule
is Overdue in Termination of Parental Rights Cases in Florida, 21
St. Thomas L. Rev. 231, 243 (2009) (“1t seems logical that if the
right to counsel in a particular situation arises from due
process, the issue of whether some act or omission of counsel
rendered a proceeding unfair should be deemed to be one of due
process.”); see also 1n re Doe, 99 Hawafi 522, 534, 57 P.3d 447,
459 (2002) (analyzing denial of an interpreter in a termination
of parental rights proceeding under procedural due process
principles).

Second, there are substantial differences in the
purposes of criminal as opposed to termination of parental rights
proceedings. §§§ Baker, 810 N.E.2d at 1039 (noting that “[t]he
resolution of a civil juvenile proceeding focuses on the best
interests of the child, not on guilt or innocence as in a
criminal proceeding”); Geist, 796 P.2d at 1202 (“There are

substantial differences between adult criminal cases and juvenile

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court proceedings involving children and their parents. Courts
have long recognized that the substantive standards and
procedural rules governing criminal cases are not necessarily
applicable or even desirable in juvenile court proceedings.”).
Consistent with that understanding, some of the protections that
exist for adult criminal defendants have not been fully imported
into the parental rights context. Geist, 796 P.2d at 1202
(noting that, unlike in criminal cases, under Lassiter, the right
to counsel in termination of parental rights cases is determined
on a case-by-case basis and that, under SantoskV v. Kramer, 455
U.S. 745, 768-69 (1982), the burden of proof in termination cases
is clear and convincing evidence rather than proof beyond a
reasonable doubt). Conversely, “the odds of an accurate
determination in a termination case are enhanced by the fact of
judicial involvement that is much more intensive than it is [in]
the usual criminal case.” Baker, 810 N.E.2d at 1041 (noting that
the judge “is not limited to [the parties’] presentations, and
may require more than they present and direct further
investigation, evaluations or expert testimony to assure him [or
her] that the interests of the child and the respective parties
are properly represented.” (quoting 1n re Adoption of T.M.F., 573
A.2d l035, 1042-43 (l990)).
Third, the interests implicated by criminal and

termination of parental rights cases are substantially different.

Most notably, termination of parental rights proceedings

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implicate
permanent

is absent

the interests of the child in having a prompt and
resolution of his or her custody status--a factor that

in the criminal context.” As the Supreme Court of

1ndiana noted in Baker:

1d. at 1040; see Geist,

1n the context of termination cases, extended
litigation imposes that burden on the most vulnerable
people whom the system and such cases seek to protect;
the children. As Justice Powell wrote, “There is
little that can be as detrimental to a child’s sound
development as uncertainty over whether he is to
remain in his current ‘home,’ under the care of his
parents or foster parents, especially when such
uncertainty is prolonged.” Lehman, 458 U.S. at 513-
14, 102 S.Ct. 3231. Justice Joette Katz made a
similar observation when Connecticut’s high court
decided not to permit state habeas as a vehicle for
collateral attacks on judgments of termination:
“[T]here exists, as the trial court noted in this
case, a ‘frightening possibility that a habeas
petition will negate the permanent placement of a
child whose status had presumably been in limbo for
several years.“ Consequently, the state's interest
paren patriae militates against allowing the writ.”
In re Jonathan M., 255 Conn. 208, 764 A.Zd 739, 753
(2001) (footnote omitted).

SS

To permit the children to travel from one home
to another while termination proceedings span across
the years is “incongruous and contrary to the federal
and state policy of minimizing the ‘foster care drift'
that has doomed millions of children to interim,
multiple or otherwise impermanent placement.” 1n re
Adoption of A.M.B., 812 A.Zd 659, 667 (Pa.Super.Ct.
2002). Due to the immeasurable damage a child may
suffer amidst the uncertainty that comes with such
collateral attacks, it is in the child’s best interest
and overall well being to limit the potential for
years of litigation and instability. “1t is
undisputed that children require secure, stable, long-
term, continuous relationships with their parents or
foster parents. There is little that can be as
detrimental to a child’s sound development as
uncertainty.” Lehman, 458 U.S. at 513, 102 S.Ct.
3231. \

796 P.2d at 1201 (observing that in

23

we therefore respectfully disagree with the dissent's assertion

that the best interests of the child can only be considered “after Petitioner
is given the opportunity to present her side of the case.” Dissenting Opinion

at 81

(emphasis added).

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termination proceedings, “[w]hether or not the eventual result is
termination, protracted litigation extends uncertainty in the
child[ren]’s life”); Musto, 21 Saint Thomas L. Rev. at 243-44
(“1t also appears from a policy perspective that due process is a
more fitting framework than ineffective assistance for
termination cases. . . . lt [] broadens the appropriate
considerations in a manner that can better focus courts on the
best interest of the child[ren] involved, rather than merely the
impact on the parent of counsel's acts or omissions”).

Applying these principles here, we decline to adopt the
rule adopted in Flores-Ortega, under which prejudice is presumed
when defense counsel fails to comply with a defendant's request
to file an appeal in a criminal case.” Rather, the failure of
appellate counsel to file an appeal in a termination of parental
rights case must be viewed in the broader context of whether the
family court proceeding was fundamentally unfair. The merit (or
lack thereof) of the issues that a party intends to raise on
appeal is a relevant consideration in making that determination.
Qfp Hernandez, 238 F.3d at 57 (court declines to apply Flores-
Ortega to an immigration proceeding, and notes that a party who

claims ineffective assistance of appellate counsel in that

“ However, we note that, even if the holding in Flores-ortega were
to apply in termination of parental rights cases, counsel's failure to file a
notice of appeal will only be considered per se ineffective where the party
has specifically instructed his or her counsel to file a notice of appeal.
528 U.S. at 477. Although there are references in the record here which
indirectly support an inference that Mother conveyed her desire to appeal to
Yonemori, there is nothing in the record to directly confirm that she did so.

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context must show more than “defects that would not plausibly
have altered the result.”).

D. The family court did not abuse its discretion in denying
Mother's Rule 60(b)(6) motion

1. Mother failed to establish that her pre-termination
counsel was ineffective

1n her application, Mother appears to request a new
trial on the basis of ineffective assistance of counsel in the
four-year period leading up to the family court's March 11, 2005
Termination Order. 1n her February 6, 2007 motion from which
this appeal is taken, Mother alleged that she was denied her due

process rights by:

the order Denying Mother's Motion to Reconsider Denial
of Oral Motion to Continue Trial; and Exclusion of
Exhibits Filed December 23, 2004, filed on March 7,
2005, and/or, the order Denying Mother's Motion to
Reinstate visitation Filed January 11, 2005, filed on
March 7, 2005, and/or, at the time of entry of the
Court's Findings of Fact, Conclusions of Law and Order
filed on March 11, 2005.

(Emphasis in original).

However, Mother's February 6, 2007 motion failed to
identify any specific error or omission on the part of counsel
during the specified proceedings. Similarly, Mother has failed
to point to any alleged errors apparent in the record. Moreover,
Mother has not provided this court with transcripts from the pre-
termination period or the permanent plan hearing to support her
contention that Mother's counsel was ineffective, nor has she
provided transcripts of the family court's hearing on her

February 6, 2007 motion. Contrary to Mother's assertion that her

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pre-termination counsel was ineffective, the family court
expressly noted in its March 7, 2005 written order denying
Mother's July 12, 2004 oral motion for a new attorney that “[t]he

court has seen nothing to indicate Ms. 1opa [has] not been

.effective in her representation and notes Ms. Iopa has worked

hard to assist [Mother].”

This court has held that “[t]he burden is upon
appellant in an appeal to show error by reference to matters in
the record, and he or she has the responsibility of providing an
adequate transcript.” Bettencourt v. Bettencourt, 80 HawaiU_

225, 230, 909 P.2d 553, 558 (1995) (quoting Union Building
Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682
P.2d 82, 87 (1984)) (brackets omitted); Lepere v. United Pub.
workers, Local 646, 77 Hawafi 471, 474, 887 P.2d 1029, 1032
(1995) (“Lepere, as appellant, had a duty to include the relevant
transcripts of proceedings as a part of the record on appeal.”)
(footnote omitted); see Hawafi Rules of Appellate Procedure Rule
10(b)(1)(A) (“when an appellant desires to raise any point on
appeal that requires consideration of the oral proceedings before
the court . . . appealed from, the appellant shall file . . . a
request or requests to prepare a reporter’s transcript of such
parts of the proceedings as the appellant deems necessary that
are not already on file.”). Given the family court's findings in
the record, and absent a transcript of the proceedings or other

indications in the record to suggest otherwise, the record does

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not establish that Mother's pre-termination counsel was
ineffective. Accordingly, the family court did not abuse its
discretion in denying Mother's motion with respect to the pre-
termination proceedings.

2. The family court did not abuse its discretion in
denying Mother's motion with regard to the post-
termination proceedings

The record establishes that Mother did not receive
effective assistance of counsel with regard to her appeal.
However, as we discuss below, Mother failed to establish that the
family court proceedings were fundamentally unfair. Moreover,
there was a nearly two-year delay between the March 11, 2005
order terminating custody, and Mother's filing of the Rule
60(b)(6) motion that is at issue here. A delay of that magnitude
in determining permanent custodial status has a substantial
negative impact on the interests of the child, which is a
significant factor weighing against the granting of Rule 60(b)(6)
relief. As we set forth below, Mother failed to demonstrate her
entitlement to relief in the family court, and has failed on
appeal to establish that the family court abused its discretion
in denying the motion.

RGB was initially placed in temporary foster custody in
200l. She was later returned to Mother under family supervision,
and then placed in foster custody in April, 2002. At the time of
that placement, she was 2 years and 9 months old. She

subsequently remained in the care of the same foster family

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through the permanent plan hearing.
There are several reports in the record that discuss
RGB’s status after that hearing. On August 3, 2005, DHS filed a

report to the family court in which it noted:

[RGB] has lived with her foster parents for three
years and five months and is well-adjusted and has
adapted to her environment.

[RGB] is happy and doing well in her current
placement. 1t would be in the best interest of [RGB]
if the adoption process were to be completed sooner
rather than later. However, Deputy Attorney General,
Howard Shiroma, reports that Mother is appealing the
[Termination Order]. . . . Thus, Mother's appeal to
the [c]ourt may delay the adoption process, negatively
impacting the well-being of [RGB].

On August 4, 2005, RGB's guardian ad litem filed a

report stating:

with regard to the permanency goal of adoption
of he [sic] child . . . , 1 have spoken to Carrie
Yonemori, the attorney appointed to represent Mother
in her appeal of the [c]ourt's permanency order, and
she has related that the necessary paperwork
pertaining to such appeal should be submitted to the
Supreme Court shortly. Although it is certainly not
in the child’s best interest, 1 would suppose that we
would be unable to proceed with any adoption until
such appeal is resolved.

On January 17, 2006, DHS filed a report to the family
court in which it noted that RGB “continues to do very well in
the care of foster parents, . . . whom she has resided with for

nearly four years.” DHS further noted that:

[RGB's foster parents] want to adopt [RGB] and have
been ready to proceed with the adoption process ever
since biological mother's parental rights were
terminated in March 2005. However, biological
Mother's pending appeal to the court . . . has
prevented the DHS and [RGB’s foster parents] from
proceeding with the adoption. Hence, [foster parents]
and [RGB] and the entire family are disappointed. Per
[foster mother], [RGB] continually wonders and asks
“when will she be adopted”.

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On May 23, 2006, DHS filed a report to the family
court, in which it noted that “[RGB] continue[d] in her
placement” where she “ha[d] been [] since April 4, 2002[,]” that
she “wants to remain there forever because she loves her foster
parents whom she refers to as ‘mom' and ‘dad[,]’” and that “she
wants to be adopted as soon as possible[.]”

On June 2, 2006, RGB's guardian ad litem filed a report
to the family court, stating that, “[i]n the past, foster parents
had reported [RGB] making reference to her mother,

However, for some time now, the only references made by [RGB] of
her mother are in the context of fantasized incidents.”“

As noted in section C, §pp;a, the negative effect on
children of delays and uncertainty in determining permanent
custodial arrangements has been well documented. See, e.g.,
Baker, 810 N.E.2d at 1039-41. The record here clearly
establishes such negative impacts on RGB. She has lived with
uncertainty about the status of her family for most of her life,
and wants that uncertainty to end.

At the time the family court issued its Termination
Order, RGB had been in foster custody for nearly three years.
§g§ HRS § 587-72(e) (Supp. 2004 & Supp. 2005) (requiring DHS,

with limited exception, to file a motion to set a permanent plan

” The June 2, 2006 report is the last report in the record before
the family court's September 28, 2006 hearing, after which it issued its
November 9, 2006 written order prohibiting Mother from having access to the
family court record going forward.

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hearing if “the child has been residing outside of the family
home for an aggregate of fifteen out of the most recent twenty-
two months[.]”). The effect of the additional delay that would
have been caused by granting the Rule 60(b)(6) motion was a

factor that weighed substantially in favor of denying the motion.

Cf. A.J., 143 P.3d at 1149-50 (although court allowed the filing

of an untimely direct appeal in a termination of parental rights
case, it noted that only nine months had elapsed since the child
was first removed from the home and that the outcome could have
been different “if the delay had been longer or exceeded the EPP
deadline for permanent placement of the child”). Mother failed
to establish an entitlement to relief sufficient to overcome that
factor.
First, Mother has not identified, either in her Rule

60(b)(6) motion, her brief to the 1CA, her application for
certiorari, or oral argument in this court, what errors occurred
in the permanent plan hearing that she would have challenged had
Yonemori timely appealed on her behalf. 1n view of her failure
to identify any potentially meritorious issues that could have
been raised but for Yonemori's failure to timely appeal, the
record does not establish that the proceedings were fundamentally
unfair. Qfy Hernandez, 238 F.3d at 57 (collateral attacks in
immigration proceedings based on ineffective assistance of
counsel should not be permitted based “on defects that would not

plausibly have altered the result”).

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Second, Mother's Rule 60(b)(6) motion did not
adequately establish that she did not play a role in contributing
to the delay in bringing the motion. §§§ Hayashi v. Hayashi, 4
Haw. App. 286, 290, 666 P.2d l7l, 174-75 (1983) (noting that
relief under Rule 60(b)(6) “calls for diligence by the moving
party”); gfp Hernandez, 238 F.3d at 57 (observing that “it would
seem that Hernandez had some duty--as a condition of a successful
due process claim--to monitor his lawyer's actions and assure
that his appeal was being pursued”); ApQp, 143 P.3d at 1150
(allowing the filing of an untimely direct appeal in a
termination of parental rights case, but noting that the result
could have been different “if the untimely filing of the notice
of appeal were attributable to mother's carelessness or
inaction”). Yonemori's representation of Mother was deficient,
as Yonemori conceded in her filings in the family court, and it
is Yonemori who appears to bear primary responsibility for most
of the delay that occurred after the family court appointed her
to represent Mother. However, the record does not explain why
Mother waited until March 10, 2006 before bringing Yonemori's
inaction to the attention of the family court.

Although Mother has a mental health condition,
nevertheless the record shows that Mother was of “above-average”
intelligence, and that she did not hesitate to bring perceived
defects in her counsels’ performance to the attention of the

family court. There may be good explanations for why Mother did

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not act sooner with regard to Yonemori’s failure to timely file
the appeal; however, the record does not reflect them.” 1n
seeking the extraordinary relief of setting aside the March 11,
2005 Termination Order nearly two years after it was entered, the
burden was on Mother to establish that she was not responsible
for the delay. gee Hayashi, 4 Haw. App. at 290, 666 P.2d at 174
(noting that “relief [under Rule 60(b)(6)] is extraordinary and
the movant must show that . . . the motion is made within a
reasonable time”).

Finally, we note that Mother failed to include in the
appellate record any transcripts of proceedings relevant to
determining whether the family court abused its discretion. As
noted in section 111(D)(1), §pp;a, appellants have the burden of
including in the record all transcripts relevant to their points
of error, Bettencourt, 80 Hawafi at 230, 909 P.2d at 558 (“The
burden is upon appellant in an appeal to show error by reference

to matters in the record, and he or she has the responsibility of

providing an adequate transcript.”) (brackets and citations
omitted).
” As discussed supra, “diligence by the moving party” is a threshold

requirement of a Rule 60(b)(6) motion. Hayashi, 4 Haw. App. at 290-91, 666
P.2d at 174-75. we therefore require a showing by the movant of “exceptional
circumstances” to mitigate any delay. 1gy at 291, 666 P.2d at 175. we
respectfully disagree with the dissent's assertion that, by doing so, we have
“[laid] the fault for the failure to file a timely motion for reconsideration

at the feet of Petitioner[.]” Dissenting opinion at 91. To the
contrary, we express no view on the diligence or lack thereof of Mother, but
rather observe that Mother has failed to provide any information regarding her
own understanding of what was transpiring between the issuance of the
Termination Order on March 11, 2005 and her filing of her pro se Motion for
Relief from Judgment on March 10, 2006.

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Although the proceedings in this case have lasted many
years and included a six-day permanent plan hearing, Mother did
not include any transcripts as part of the record on appeal.
Mother did not include in the record any transcripts from the
permanent plan hearing that might explain the circumstances
surrounding the court's March 11, 2005 order discharging Iopa.
Mother also did not include in the record any transcripts from
the hearings held during the period between the Termination Order
and the hearing on Mother's February 6, 2007 Rule 60(b)(6)
motion. For example, in its written order following a hearing on
April 6, 2006, the family court noted that Mother waived any
conflict of interest Yonemori had in continuing to represent
Mother; presumably, that hearing included some discussion of the
consequences of the waiver and/or about what actions were
expected to be taken subsequent to the hearing. Moreover, Mother
did not include in the record any transcripts from the
September 28, 2006 hearing on Mother's pro se Rule 60 motion,
Yonemori’s Rule 60 motion, and Yonemori's motion to withdraw.

Most notably, Mother did not include in the record a
transcript of the Apri1 24, 2007 hearing on Mother's February 6,
2007 Rule 60(b)(6) motion, which is the subject of this appeal.
Thus, we do not know what, if anything, was said concerning the
reasons for the delays that occurred after the Termination Order
was issued, or any oral comments that might have been made by the

court in explaining its ruling. The burden was on Mother to

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include in the record an adequate transcript of the proceeding
that gave rise to this appeal. _§§ Bettencourt, 80 Hawafi at
230, 909 P.2d at 558. Mother's failure to provide a transcript
is a substantial omission. State v. Hoang, 93 HawaFi 333, 334,
3 P.3d 499, 500 (“without the . . . transcript, the Intermediate
Court of Appeals did not, and this court does not, have a basis
upon which to review the point of error raised in the present
appeal.”).

For all these reasons, Mother has failed to establish
that the family court abused its discretion in denying her Rule
60(b)(6) motion.

E. The family court did not abuse its discretion in limiting
Mother's access to post-termination records

As noted above, the family court held a hearing on
September 28, 2006, following which it issued its November 9,
2006 written order, limiting Mother's access to the court records

in this case as follows:

Mother[‘s] . . . parental rights have been terminated
and due to this status and the possibility of
dissemination of these confidential records, the court
finds that future court records are not currently
available to Mother . . . ; provided however that
court records will be made available for any appellate
review of this decision.

1n her February 6, 2007 motion, Mother moved for, inter
alia, “release of all evidence or files in case,” and alleged
that the family court's November 9, 2006 limitation on her access
to the court records “[was] a direct violation of the right to

due process[.]”

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On May 8, 2007, the family court denied Mother's motion
and all relief therein requested, and Mother appealed. Mother's
October 30, 2007 opening Brief to the 1CA again alleged that
“when the trial court refused to allow [Mother] to review
‘confidential' records and files, as stated in the Motion
appealed from, this was yet another example of a deprivation of
[Mother's] due process rights to a fair trial.” The 1CA
concluded that the family court “did not err in limiting Mother's
access to the post-November 6, 2006 confidential record in this
case.” 1n re RGB, 2009 wL 953392 at *3.

Finally, in her application for a writ of certiorari,
Mother argued that “[a]s a parent’s right to file an array of 60b
[sic] motions continue for up to one year and in some cases
beyond, a[n] unfettered right to review such records during the
one year period at least should freely be given to Mother.”
Mother further argued that “a new trial must be granted as the
only appropriate remedy.””

Although not entirely clear, Mother's application
therefore appears to challenge the family court's November 9,
2006 order limiting her prospective access to the court records

in this case. Accordingly, we construe Mother's February 6, 2007

motion as a request to vacate or reconsider the family court's

" we note that Mother failed to include with her application a
statement of the facts material to our consideration of the question presented
concerning her access to records as required by HRAP Rule 40(d)(3), and her
argument may accordingly be disregarded. Nevertheless, we address the merits
of Mother's argument.

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November 9, 2006 written order limiting her prospective access to
the court records.
The family court's November 9, 2006 order limiting

Mother's access to the court records draws support from its
March 11, 2005 order terminating Mother's parental rights. Upon
the termination of parental rights, HRS § 587-73(b)(4) (1993 &
Supp. 2005 & 2006)” allows the family court to limit or restrict
the participation of unnecessary parties in subsequent

proceedings as follows:

the court shall order . . . [t]hat such further orders
as the court deems to be in the best interests of the
child, including, but not limited to, restricting or
excluding unnecessary parties from participating in
adoption or other subsequent proceedings, be
entered[.]

HRS § 587-73(b)(4).

Consistent with that power, the family court, in its
Termination Order, found that “it is in [RGB’s] best interests
that the participation of Mother and Father in subsequent
hearings be limited or restricted to appearances on any motions
for relief from this decision and order or any motions necessary
to pursue an appeal.” The family court's November 9, 2006 order
limiting Mother's access to the court records stems from the
termination of Mother's parental rights, and the family court's
finding that limitations on Mother's participation in subsequent

proceedings concerning RGB would be in RGB’s best interest, This

” HRS § 587-73(b)(4) now appears as HRS § 587-73(b)(1)(D) (Supp.
2008) .

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limitation is consistent with the powers afforded the family
court under HRS § 587-73(b)(4).

1n addition, as noted by the 1CA, Mother has failed to
identify “any documents or category of documents that she
reasonably requested access to or why she need[ed] full access,”
1n re RGB, 2009 wL 953392 at *3. and has not identified any
relevance of the post-November 9, 2006 record to her appeal.
Moreover, aside from acknowledging the length of time that has
passed since the family court's March 11, 2005 Termination Order,
we do not rely on the post-November 9, 2006 record in reaching our
holding, and Mother therefore had access to all court records that
were relevant to her appeal.

Accordingly, we hold that the family court did not abuse
its discretion in issuing its November 9, 2006 order limiting
Mother's prospective access to the court records or in denying
Mother's February 6, 2007 motion insofar as it sought to have the
court reconsider or vacate its earlier ruling.

1v. Conc1usion
For the foregoing reasons, we affirm the 1CA's May 21,

2009 judgment.

James 1reijo, for C§z

petitioner/mother-

appellant l§l_¢u.¢ n C#`\7\09‘<@1-jCL/’1"@/\
Howard H. Shiroma, l

Deputy Attorney General,
for respondent/
petitioner-appellee

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