N()T FOR PLFBL[CA'I`IONM IN VVES'I"S HAVVAI‘I REP()RTS ANI) PACIFIC RIEP()R'!`_ME.R
NO. 29755
IN THE INTERMEDIATE COURT OF APPEALS
oF THE sTATE or HAWA:‘I
..’.a"
§"~¢.,3
E'.».,;'P
IN THE INTEREST OF A.A.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUlT
(FC~S N0. 07~ll258)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Mother~Cross~Appellant (M0ther) is the legal and
natural mother of A.A. who was born on August lO, 2006. Father-
Appellant (Father) is the legal and natural father of A.A. [see
FOF 651 Father and Mother appeal from the Order Granting Motion
Awarding Permanent Custody and Establishing a Permanent Plan
Filed November 7, 2008, filed on March 25, 2009 (Order Granting
Motion for Permanent Custody), in the Family Court of the First
Circuit (Family Court),F
Points of Error
On appeal, Father challenges Findings of Fact (FOF) 86,
89, 90, 95, 96, lO2, and lO3, Conclusions of Law (COL) 9, lO, and
ll, and contends that the Family Court abused its discretion by
awarding permanent custody of A.A. to Appellee, State of HawaiUq
Department of Human Services (DHS). Father argues that the
Family Court: (l) erred when it found that DHS had made
reasonable efforts to effectuate reunification because DHS failed
to provide parents with an adequate and appropriate family
service plan; and (2) abused its discretion when it awarded
permanent custody of A.A. to DHS because DHS failed to
demonstrate, by clear and convincing evidence, that parents are
not willing and are unable to provide A.A. with a safe family
l/ The Honorable James H. Hershey presided.
NOT FOR PU}?»LI`CA,'I`I()N IN WEST'S I"LAW'AI`I. REPOR'I`S AN]) l’ACIFIC REI’()R'I`ER
home now or in the foreseeable future, even with the assistance
of a service plan.
On appeal, pointing to FOFs 98 and 99, Mother
challenges the FOFs and COLs on the grounds that they do not
address whether the permanent plan is in A.A.'s best interest
pursuant to Hawaii Revised Statutes (HRS) § 587-73(a). Mother
argues that she has been in substantial compliance with the
service plan as she has been in therapy twice monthly in
Washington State since June of 2008, has completed parenting
classes in Hawai‘i and New Jersey, and because Mother is in
military service, A.A. would qualify for the Exceptional Family
Member Program (EFMP), which would provide daycare, respite care,
and an in-home nurse for A.A. Mother challenges the testimony of
the DHS service worker who admitted that Mother was not diagnosed
with any mental health problems and that he did not require any
domestic violence services in Mother's service plan. Mother also
contends that, although she continued to comply with the service
plan, she did not have a reasonable opportunity to reunite with
A.A. because, due to financial hardship following Father's
discharge from military service, she left for New Jersey (where
she has family), and later enlisted in the military herself in
order to be able to provide support and a safe home for A.A.
Mother argues that her military service should not be used
against her in terminating her parental rights.
Standards of Review
The Family Court possesses wide discretion in making
its decisions. The Family Court's decisions will not be set
aside unless there is a manifest abuse of discretion. Therefore,
"we will not disturb the family court's decisions on appeal
unless the family court disregarded rules or principles of law or
practice to the substantial detriment of a party litigant and its
decision clearly exceeded the bounds of reason." Fisher v.
NO'I.` FOR PI§`IBI_)!CAT]()N lN W?ES'I"S HAWAI‘I REP()RTS AN'I) PACI'.F_I'C .REPORTEI{
Fisher, ill Hawaid.4l, 46, 137 P.3d 355, 360 £2006) {citation
omitted).
The family court‘s FOFs are reviewed on appeal under
the clearly erroneous standard. A FOF is clearly erroneous
when (l) 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.
On the other hand, the family court's COLs are
reviewed on appeal de novo, under the right/wrong standard.
COLs, consequently, are not binding upon an appellate court
and are freely reviewable for their correctness.
Moreover, the family court is given much leeway in its
examination of the reports 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.
Id. (citations, internal quotation marks, brackets, and some
ellipses omitted).
Discussion
Upon careful review of the record and the briefs
submitted by the parties and having given careful consideration
to the arguments advanced and the issues raised by the parties,
we resolve Father and Mother's points of error as follows:
lt is undisputed that A.A. is a medically-fragile
child. She suffers from cerebral palsy, hypoxic ischemic
encephalopathy, dysphagia, gastroesophageal reflux disorder,
developmental delays, and other medical conditions that require
her to be fed through a "G-tube" and be maintained on an
intensive ongoing comprehensive treatment regimen. while still
an infant, A.A. was initially taken into custody after reports of
abuse, neglect, and a failure to thrive. The Family Court found,
and parents do not challenge, that any transition for A.A. would
be against medical advice.
N()'.I` F()R `PUBL[(.`,A'I`I()N IN \VES'I"S }`]AVVA.`{‘I’ REPOI{'FS AND PACIFYIC R.I<`,"P()I?&TPII{
Contrary to Father’s argument that DHS failed to make
reasonable efforts to reunify A.A. with her parents, it appears
that the limited number of recommended services for Father was
attributable, at least in part, to Father’s failure to complete
the service that were required, parents' failure to attend 21 of
their 31 scheduled visits with A.A., and parents' relocation to
the mainland. Although A.A. was taken into custody in February
of 2007 and a service plan was stipulated to in April of 2007,
Father failed to participate in a psychological evaluation until
March l8, 2008. Without the psychological evaluation, DHS was
not able to determine what services were required by Father and
Father did not request any additional services. There is
substantial evidence in the record to support the FOFs and COLs
challenged by Father.
DHS's witnesses testified that Mother and Father were
not prepared to or capable of taking care of the medical needs of
A.A. The Family Court found the DHS witnesses to be credible and
persuasive, whereas it found parents' testimony to lack a
realistic understanding of the difficulties of providing a safe
and secure family home to A.A. The Family Court's conclusion
that A.A.'s parents are not willing and able to provide her with
a safe family home now or in the foreseeable future, even with a
service plan, is supported by numerous unchallenged findings,
which are supported by the record in this case.
Mother is mistaken in her argument that the Family
Court did not address whether the permanent plan would be in
A.A.'s best interest pursuant to HRS § 587-73(a). The Family
Court did so in FGF 53, COL l2, and through numerous other FOFs
and COLs. Although Mother’s living situation arguably stabilized
after she left Hawafi and then, months later, left New Jersey to
relocate to washington State with her enlistment in the military,
and Mother appeared to be in substantial compliance with certain
aspects of the service plan, including attendance at therapy and
NOT F()R PUBL.ICA"I`ION IN WES'T'S HAW¢XI°I REPOR'I`S ANI) PACIF¥C REPORT`|§`.I{
completion of parenting classes, in light of A.A.'s medically~
fragile condition, A.A.'s failure to thrive in her parents' care,
parents' history of domestic violence and unstable relationship,
and the reports of neglect and threat of abuse/neglect of A.A.,
and of a younger sibling who was born in New Jersey after parents
left HawaiYi, we cannot conclude that the Family Court abused its
discretion in granting permanent custody to DHS. There is no
indication in the record or in the orders of the Family Court
that support Mother’s assertion that the Mother's military
service was "used against her" in terminating her parental
rights.
For these reasons, we affirm the Family Court’s March
25, 2009 Order Granting Motion for Permanent Custody.
DATED: Honolulu, HawaFi, January 20, 20l0.
On the briefs: Cé;9V&L/j?;>%::j
Herbert Y. Hamada Presiding Judge
for Mother-Appellant
wilfred S. Tangonan @¢U
for Father~Appellant Associate Judge
Lila C.A. King
Mary Anne Magnier
Deputy Attorneys General
for Petitioner-Appellee '
Department of Human Services //