LAW Lzsz=zAaY
NOT FOR PUBLICATION lN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 300l5
lN THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAWAI‘I
IN THE INTEREST OF TW
’8 NV 91 HJV@IHZ
Z*§"’?i,,-=’
APPEAL FROM THE FAMILY COURT OF THE FIRST ClRCUIT
(FC-S NO. 08-ll970)
SUMMARY DlSPOSITION ORDER
(By: Nakamura, C.J., Fujise and Leonard, JJ.)
Mother-Appellant (Mother) and Father-Appellant
appeal from the August lO, 2009 Order Awarding Permanent Custody
entered by the Family Court of the First Circuit? (family court)
awarding Petitioner~Appellee Department of Human Services, State
permanent custody over Mother and Father's
(Father)
of HawaFi (DHS),
child TW and terminating Mother and Father's parental rights to
TW.
On appeal, Mother argues that DHS failed to provide her
with a reasonable opportunity to reunite with TW because (l) DHS
failed to provide her with dual diagnosis substance abuse
treatment in a timely manner and (2) DHS did not give her a
reasonable period of time to prove that she could provide a safe
family home for TW with the assistance of a service plan. Mother
does not challenge any of the family court's findings of fact.
On appeal, Father argues that the family court abused
its discretion when it held that he could not provide a safe
family home within the forseeable future by relying too heavily
Father challenges the family
upon Father's incarceration.
94, 95, and lO7:
court's findings of fact numbers 92,
92. Under the circumstances presented by the case,
Father was given every reasonable opportunity to effect
positive changes to provide a safe family home and to
reunify with [TW]. Father's ability to access appropriate
services during his incarceration was limited due to her
[sic] incarceration and not by any actions of DHS.
1 The Honorable Karen Radius presided.
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94. lt is not reasonably forseeable that Father will
become willing and able to provide [TW] with a safe family
home, even with the assistance of a service plan because
even if Father were to suddenly change his long standing
pattern of behavior, there is no likelihood that he would
sufficiently resolve his problems at any identifiable point
in the future.
95. The above [Hawaii Revised Statutes (HRS)] § 587-
73(a)(1) and (2) "parental unfitness" findings of fact
regarding Father were not solely based on his incarceration.
The other factors that the court considered were Father's
problems, as stated above, and the length of time he needs o
to demonstrate the ability to provide a safe home for [TW]
after he is released from incarceration.
107. [Father] is not a credible witness, specifically
his testimony about his ability to provide a safe family
home for [TW], at the time of trial and the reasonably
foreseeable future.
Father also challenges the family court's conclusions
of law numbers l0, l2, and l4:
10. An incarcerated parent cannot provide his/her
child with a safe family home during his/her period of
incarceration, and the incarcerated parent's participation
in services is an empty pursuit until the parent is released
from incarceration. In re Doe, [lOO Hawafi 335, 345, 60
P.3d 285, 295 (2002)].
12. DHS is under no obligation to provide services
to an incarcerated parent, when the services are not
available to the incarcerated parent in the prison system.
In re Doe, 100 [HawaFi] at 345, 60 P.3d at 295.
14. It is not reasonably forseeable that [TW’s]
legal mother, legal father, adjudicated, presumed, or
concerned natural father, as defined under chapter 578, will
become willing and able to provide {TW] with a safe family
home, even with the assistance of a service plan, within a
reasonable period of time.
After a careful review of the record in this case, the
arguments of Mother and Father and the applicable law, we
disagree with Mother and Father and resolve their points on
appeal as follows.
According to the Hawafi Supreme Court, "the family
court is given much leeway in its examination of the reports
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concerning a child's care, custody, and welfare, and its
conclusions in this regard, if supported by the record and not
clearly erroneous, must stand on appeal." In re Doe, 101 Hawafi
220, 227, 65 P.3d 167, 174 (2003) (internal quotation marks,
citation, and brackets omitted). Moreover, in appeals concerning
family court decisions to terminate parental rights,
the question on appeal is whether the record contains
substantial evidence supporting the family court's
determinations [pursuant to HRS § 587-73(a)], and appellate
review is thereby limited to assessing whether those
determinations are supported by credible evidence of
sufficient quality and probative value. In this regard, the
testimony of a single witness, if found by the trier of fact
to have been credible, will suffice.
In re Doe, 95 Hawafi 183, 196, 20 P.3d 616, 629 (2001) (internal
quotation marks and citation omitted).
The family court's [Findings of Fact] are reviewed on
appeal under the "clearly erroneous" standard. A [Finding
of Fact] is clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2) despite
substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. "Substantial
evidence" is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.
In re Jane Doe, 101 Hawafi at 227, 65 P.3d at 174 (internal
quotation marks, citations, and ellipsis omitted).
"If a finding is not properly attacked, it is binding;
and any conclusion which follows from it and is a correct
statement of law is valid." Wisdom v. Pflueger, 4 Haw. App. 455,
459, 667 P.2d 844, 848 (l983).
According to the uncontested findings of fact in this
case, Mother and Father are the parents of TW, a male child. On
September 7, 2008, DHS took temporary foster custody of TW after
Mother was found intoxicated and unconscious and TW was found in
urine-soaked diapers. Mother was taken to The Queen‘s Medical
Center emergency room and was later admitted to the Kekela Unit;
Mother admitted using methamphetamines and drinking vodka and
beer. DHS filed a petition for temporary foster custody of TW on
September 10, 2008. Although served, Mother failed to answer
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this petition; Father stipulated to the petition and service
plan.
Mother suffers from long-standing unresolved substance
abuse and mental health problems. Mother admitted at trial to an
unsuccessful fourteen-year long history of participating in drug
treatment where her longest period of sobriety was nine months.
Mother suffers from Schizoaffective Disorder, Bipolar Type, and
with Features of Post-Traumatic Stress Disorder, Although Mother
has been prescribed psychotropic medication for her mental
disorder, she has not demonstrated an ability to take her
medication on a consistent and prolonged basis nor does she
consistently participate in mental health treatment. At the time
of trial, Mother had been taken off her medications due to
another pregnancy.
Mother is the natural mother of three other children.
In 2000, DHS "confirmed the report of abandonment of" the older
two children, TW1 and LD. Mother lost her parental rights to the
youngest of these three children, MW, by order of the family
court dated October 23, 2008. Mother lost her parental rights to
MW at least in part due to her substance abuse and mental health
problems.
During her pregnancy with TW, Mother began
participation in the Perinatal Addiction Treatment of Hawaii
(PATH) program, which provided instruction on drug-free parenting
and relationship skills. PATH arranged for mental health
services, conducted drug testing, and monitored prenatal medical
appointments. Although PATH is not a substitute for formal drug
treatment, Mother refused formal drug treatment and discontinued
attendance with PATH after TW was removed from her home. The
family court ordered Mother to participate in a dual-diagnosis
treatment program on March 9, 2009. However, Mother did not do
so until ordered, as a condition of her release on bail by
federal authorities on June 24, 2009, to participate in the dual-
diagnosis treatment program at Hina Mauka. At the time of trial
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in July 2009, Mother had not yet completed the residential phase
of the treatment program at Hina Mauka.
Based on the foregoing unchallenged facts, there was
substantial evidence in support of the family court's
determination that Mother was not willing and able to provide TW
with a safe family home, even with the assistance of a service
plan.
Father has had only minimal contact with TW from TW's
birth until Father‘s latest incarceration in July 2008. In April
2008, Mother reported to DHS that Father was hitting her and
swearing at her. Mother entered a domestic violence shelter but
returned after police removed Father from the family home.
After a time away from the home, Father returned, only to be
arrested for parole violations.
Father was convicted of Unauthorized Entry Into Motor
Vehicle in the First Degree (UEMV) in June 2003, Promoting a
Dangerous Drug in the Third Degree (PPD3) and Prohibited Acts
Related to Drug Paraphernalia in April 2004, and again for UEMV
and PPD3 in December 2005. As a result of these three
convictions, Father was sentenced to concurrent indeterminate
five-year terms of incarceration. Father's parole was revoked in
July 2008 because he had used illicit drugs. On July 22, 2009,
the Hawaii Paroling Authority decided that Father will be
incarcerated until June 2010.
After release, Father will need to demonstrate a
prolonged and sustained period of sobriety while he is living in
the community, develop a bond with TW, and demonstrate
appropriate parenting skills. Due to TW's age and the limited
contact with TW, the family court found that Father would need at
least an additional year to show this bond and parenting skills.
The family court also found that Father was not "presently
willing and able to provide [TW] with a safe family home, even
with the assistance ofVa service plan.
The family court was well aware that a parent's
incarceration could not be the sole basis for terminating that
5
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parent's rights, but this fact can be taken into consideration
with other factors relevant to whether the parent is able to
"remedy the conditions of abuse and neglect." However, the
family court was also aware that the length of the incarceration
may be considered in determining whether a parent could provide a
safe family home within a reasonable amount of time and that "a
reasonable period of time" is defined as "two years from the date
upon which the child was first placed in foster custody by the
court" and that two years is the outer limit. §§§ HRS § 587-
73(a)(2) (2006).
Based on the uncontested facts in this case and the
applicable law as stated by the family court, Father has failed
to show that the family court was wrong in its determination that
Father would not be able to provide a safe family home for TW
within a reasonable time.
Therefore,
lT lS HEREBY ORDERED that the AuguSt l0, 2009 Order
Awarding Permanent Custody entered by the Family Court of the
First Circuit is affirmed as to both Mother and Father.
DATED: Honolulu, HawaiUq April 16, 2010.
On the briefs:
Herbert Y. Hamada, ' ff
for Mother-Appellant. éjz€j