LAW L!BRARY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 3009l
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
30 ""*” **~Avuezez
hamm
IN THE INTEREST OF M CHILDREN: TM, JM,
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. O7-ll388)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding J., Fujise and Leonard, JJ.)
Parents) each appeal
Father and Mother (collectively,
from the Order Awarding Permanent Custody (Order Awarding
(collectively, the M Children) to the
(DHS), filed on September 15,
(family court).l
the family court erred
of TM, JM, and AM
2009
Custody)
Department of Human Services
in the Family Court of the First Circuit
On appeal, Father contends (l)
in finding that Father was a perpetrator of harm to the M
Children; (2) the family court erred in finding that Father had
not participated in or benefitted from the recommended services
(3) the
and was therefore unable to provide a safe family home;
family court erred in finding that adoption by the Foster
(4) the
Parents2 was in the best interests of the M Children;
family court erred in qualifying Annibelle Togle-Wilson (Togle~
as an expert in social work; and (5) without Togle-
Wilson)
there was insufficient evidence to
Wilson's expert testimony,
support the termination of parental rights.
Mother contends (l) she participated in
DHS failed to make reasonable efforts
and (3) the family court's
On appeal,
recommended services, (2)
to reunify her with the M Children,
determination that adoption by Foster Parents was in the best
1 The Honorable Christine E. Kuriyama presided.
2
At the time of trial, the M Children were living with their paternal
aunt and uncle, who had become their Foster Parents.
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interests of the M Children was not supported by clear and
convincing evidence.
The determinations of the family court relating to
whether a child's parent is, or will become in the foreseeable
future, willing and able to provide a safe family home for the
child are reviewed on appeal for clear error. In re Doe, 95
Hawafi l83, l90, 20 P.3d 6l6, 623 (200l); §§e In re Doe, 103
Hawai‘i 130, `135, 80 P.3d 20,_25 (App. 2003).
The determination of witness credibility is left to the
family court. "It is well-settled that an appellate court will
not pass upon issues dependent upon the credibility of witnesses
and the weight of evidence; this is the province of the trier of
faCt." FiSher V. FiSher, lll HaWafi 4l, 46, 137 P.3d 355j 360
(2006) (internal quotation marks and citation omitted).
"[T]he family court's determination of what is or is
not in a child's best interest[] is reviewed on appeal for clear
error " ln re Doe, 95 Hawafi at l90, 20 P.3d at 623.
A court's decision to qualify an expert witness is
reviewed for an abuse of discretion. ln re Water Use Permit
applications 94 Hawai‘i 97, 183, 9 P.zd 409, 495 (2000),- §_@_e_
also State v. Fukaqawa, 100 HawaiU_498, 503-04, 60 P.3d 899,
904-05 (2002).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we do not agree with
Mother or Father's contentions.
On May l6, 2007, DHS filed a “Petition for Temporary
Foster Custody and Foster Custody (Upon Location)" for the M
Children and PM,3 their older sibling. DHS became involved with
the M Children because of severe emotional and psychological
issues of the M Children and PM resulting from abuse and neglect.
3 The family court's jurisdiction over PM terminated on June 24, 2008,
prior to the start of trial, because PM "aged out of jurisdiction."
2
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Instances of abuse included the older children not being fed
regularly and the younger children being forced to wear diapers
even though they had been toilet trained. The M Children were
made to use toilets outside the house. TM had to defecate into a
plastic bag at night. Father and the M Children were made to
sleep at a bus stop. Mother called the M Children "dirty" and
slapped and pinched them. Parents failed to take the M Children
to the dentist, resulting in dental problems for the M Children.
On December l9, 2008, DHS filed a Motion for Order
Awarding Permanent Custody and Establishing a Permanent Plan.
Trial was held over four days in August and September 2009.
Dr. Loomis, a clinical psychologist, testified at trial
that he diagnosed Mother as having an obsessive~compulsive
disorder, adjustment disorder with a depressed mood, and a "very
limited ability to understand her children's needs." Father was
diagnosed as having a personality disorder "not otherwise
specified with dependent features.“ Father's coping mechanism
was repression, denial, and evasiveness, and he had little
understanding of what his children were going through. Father
had only a limited ability to acknowledge problems in the family
and seek help.
After examining the M Children, Dr. Loomis made the
following diagnoses: PM suffered from an adjustment disorder, TM
suffered from an adjustment disorder with a depressed mood and
possible psychotic disorder, AM had a cognitive disorder, and JM
had an adjustment disorder with mixed anxiety and depressed mood,
Dr. Loomis testified that each of the children required follow-up
care and therapy and the care provider for the M Children would
need to have insight into their needs and be able to get the
necessary help.
Mother denied the allegations of abuse and neglect.
Father denied some of the allegations and attempted to minimize
or explain others. Parents did not fully cooperate in
recommended services and opposed the outreach program in their
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home. Parents had to be referred three times to outreach
services because of poor participation. Parents had to be
reminded during outreach and visitations that it was
inappropriate for them to talk about foster home issues in front
of the M Children. Parents had not completed individual therapy
and marital counseling. Counseling was terminated because of
Parents‘ poor attendance. Togle-Wilson, the DHS case manager4
assigned to the M Children, was unable to estimate how long it
would take for Parents to complete the therapy services required
by the service plan.
Although Parents completed parenting classes, they used
the class time to talk about the Foster Parents. Catherine Sox
(Sox), the Program Director of Catholic Charities Comprehensive
Services, testified at trial that she did not believe that
Parents were capable of appropriate parenting for the M Children
in spite of having completed the parenting class.
The M Children have done well with the Foster Parents
and Foster Parents are addressing the needs of the M Children.
Togle~Wilson testified that "[t]he foster home is safe and
nurturing towards [the M] children." The goal of the permanent
plan is adoption of the M Children, which Togle-Wilson testified
was in the best interests of the M Children.
On September l5, 2009, the family court entered the
'Order Awarding Custody. The family court entered its Findings of
Fact and Conclusions of Law on November 5, 2009.
Father‘s complicity in Mother's mistreatment of the M
Children went beyond mere failure to protect, and the family
court did not clearly err in identifying Father as a perpetrator
of harm. The failure of Parents to pay attention to PM and TM
during visitation, Parents' failure to clean the house prior to
4 Togle~Wilson testified that her correct job title was Human Service
Professional, but she called herself a case manager, and she performed the
same work as the social workers in the DHS. Over Parents' objection, the
family court qualified 'l`ogle~Wilson as an expert in the social work of Child
welfare or Child Protective Ser“vices.
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outreach sessions, and the failure of either Mother or Father to
take the M Children to a dentist were not problems caused by
Mother alone. The family court's determination was also
supported by the testimony of Dr. Susan Cohen, a licensed
psychologist and TM's therapist, who testified that "l believe
that it's abuse when it's not -- when a parent is not being
protective of their child. So if Father is in the home and these
things are happening, if he‘s not being protective of the child,
1 believe that that's a level of abuse."
The testimony of a single witness may be sufficient to
support a finding of the family court. In re "A" Children, 119
HawaiU_28, 43, 193 P.3d 1228, 1243 (App. 2008) (guoting In re
p&a_, 95 Hawaj_‘i at 196, 20 P.:zd at 629).
Parents' attendance at all of the parenting classes and
their partial participation in other services does not render the
family court's finding that Parents failed to meaningfully
participate in services clearly erroneous. There was substantial
evidence that Parents failed to participate in some services and
even when they attended services, they did not always participate
in a meaningful way.
DHS‘s efforts to effectuate reunification of the family
were reasonab1e. The failure of recommended services to achieve
reunification appears to have been due to Mother's refusal to
meaningfully participate in said services and to acknowledge
problems rather than any failure by DHS. Dr. Jerry Brennan, a
clinical psychologist and therapist who treated Parents,
testified that Mother tended to minimize problems. Mother missed
several sessions and cancelled several other sessions. One of
the issues Dr. Brennan addressed with Mother was that the house
was a mess, and Parents agreed that it needed to be cleaned up.
Dr. Brennan testified that he talked to Parents repeatedly about
cleaning up the house and although Mother did clean sometimes,
she could not part with anything. Togle-Wilson testified that
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after approximately two years, neither Mother nor Father had
completed the required services.
If Mother required other or additional services, Mother
bore some responsibility in the process. There is no evidence
that she made a timely request for such services. §e§ ln re Doe,
100 Hawai‘i 335, 344, 60 93d 235, 294 (2002) ("Manifes#;ly, a
claim for additional services and accommodations must be timely
made.").
lt was not an abuse of discretion for the family court
to treat Togle-Wilson as a social worker where the evidence
established that the work she did was that of a social worker,
she was hired by DHS as a social worker, and DHS treated her as a
social worker. Togle-Wilson testified that she graduated from
Seattle University with a Bachelor of Arts in Sociology and her
education track was in social work. She was hired by DHS to be a
"Case Manager Social Worker." She testified that the work she
performed at DHS was social work. Her title at DHS was Human
Services Professional, but she was considered to be a social
worker.
The fact that Togle-Wilson did not have a HawaFi
social worker license is not dispositive. HRS § 467E-6(2) (Supp.
2009) exempts state employees from the licensing requirement.
§467E-6 Exemptions. Licensure shall not be required
Of:
(2) Any person employed by a federal, state, or
county government agency in a social worker
position, but only at those times when that
person is carrying out the duties and
responsibilities as a social worker in
governmental employment[.]
ln the absence of a requirement that Togle-Wilson be licensed, it
was not an abuse of discretion for the family court to qualify
Togle-Wilson in the area of social work pursuant to HRS § 587-
40(e) (2006 Repl.) ("A person employed by [DHS] as a social
worker in the area of child protective or child welfare services
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is qualified to testify as an expert in the area of social work
and child protective or child welfare services.").
There was substantial evidence that Parents failed to
address the issues that endangered the M Children, and therefore
the family court's ultimate determination was not clearly
erroneous. Several witnesses testified that Parents were not
capable of providing the M Children with a safe family home and
there was substantial evidence that neither Mother nor Father was
capable of providing the M Children with the level of care they
required.
Beverly Nakamoto (Nakamoto), a DHS social worker
supervisor, testified that neither Mother nor Father was
presently willing and able to provide a safe family home even
with the assistance of a service plan. Sox testified that she
did not believe Parents were capable of appropriately parenting
the M children. Choy-Gibson testified that the care giver for AM
would have to be "warm, nurturing, predictable, consistent" and
understand AM's issues. Cynthia Comer5 (Comer) testified that TM
needed stability, consistency and structure from a care giver who'
also understood TM's need for continued therapy. Comer also
testified that TM had not been consistently receiving food,
supervision, or love from Parents.
The evidence showed that Parents continually deny that
there was a problem. Dr. Loomis testified that Father had little
understanding of what his children were going through. Nakamoto
testified that neither Mother nor Father had any insight into the
problems of the M Children. The problems that necessitated
temporary custody had not been resolved by either Mother or
Father at the time of trial.
In In re Doe, 95 HaWafi at l97, 20 P.3d at 630, the
HawaiYi Supreme Court held that
5 Comer testified that she holds a masters in child and family therapy
and was helping TM "adjust in academics, social, community and home setting."
7
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Mother‘s vacillating compliance with service plans relating
to [Doe], as well as her history of poor compliance with the
service plans ordered in family court proceedings regarding
her other children, amply supported the family court's
conclusion that her inability to provide a safe family home
for [Doe] would not improve with the assistance of a service
plan.
ln the instant case, Parents' inability to complete
recommended services within two years supported the family
court's conclusion that even the assistance of a service plan
would not make Parents capable of providing a safe family home.
Mother and Father appear to object to adoption of the M
Children by the Foster Parents. However, the permanent plan
approved by the family court only refers to "adoption to
appropriate caregivers." ln light of the testimony by Comer of
TM's need for consistency and the testimony of Choy-Gibson of
AM's need for consistency, the determination that adoption was an
appropriate goal was not clearly erroneous. The family court's
determination was also supported by Togle-Wilson's testimony that
adoption was in the best interests of the M Children.
Therefore,
1T IS HEREBY ORDERED that the Order Awarding Permanent
Custody filed on September 15, 2009 in the Family Court of the
First Circuit is affirmed.
DATED: Hon<>lulu, Hawai‘i, May 4, 2010.
On the briefs:
mae w. kim
for Mother-Appellant. ~
Presiding Judge
Herbert Y. Hamada
for Father-Apellant. 2 ` 2
Mary Ann Magnier,
Deputy Attorney General,
Rebecca A. Copeland,
Deputy Solicitor General,
for Petitioner-Appellee
Department of Human Services.
*ssociate J¢dge