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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JAN-2023
07:58 AM
NO. CAAP-22-0000300Dkt. 66 SO
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
IN THE INTEREST OF JFJ
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-S 19-00270)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Father-Appellant (Father) appeals from the Family
Court of the First Circuit's (Family Court) 1 April 20, 2022 Order
Terminating Parental Rights (TPR Order), terminating Father's
parental rights over JFJ. JFJ is a male child who was ten years
old when he was removed from the family home on November 13,
2019. JFJ's mother had passed away on September 8, 2019. JFJ
was placed in protective custody when Petitioner-Appellee
Department of Human Services (DHS) confirmed a threat of sexual
abuse to JFJ, following a report by JFJ's 14-year-old half-
sibling, 2 of sexual abuse by Father. JFJ's date of entry into
foster care was January 12, 2020.
1 The Honorable Jessi L.K. Hall presided.
2 This half-sibling was Mother's child from a relationship prior to
her relationship with Father.
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On appeal, Father contends that the Family Court erred
by finding that DHS provided Father with a reasonable
opportunity to reunify with JFJ because DHS failed to arrange
"contact/visitations" between Father and JFJ, and failed to
provide "clarity in the services [Father] was required to
complete." Father also contests all findings of fact (FOFs) and
conclusions of law (COLs) in the Family Court's June 2, 2022
Findings of Fact and Conclusions of Law (FOF/COL), but only
presents discernible arguments with regard to FOFs 20, 28, 42,
57, 64-66, and 74 and COLs 12, 13, and 15. 3
3 Father's challenges to the remaining FOFs are waived. See Rules
Expediting Child Protective Appeals Rule 11(a)(4) (requiring legal argument
for each point of error). The challenged FOFs provide:
20. At the June 2, 2021 hearing, Father contested
the Motion to Terminate Parental Rights and the Court set a
trial. Also at that hearing, the Court ordered the DHS
Family Service Plan dated May 12, 2021, without
modification. There is a typographical error on the second
page of the Order Concerning Child Protective Act filed on
June 9, 2021, indicating that the May 12, 2021 service plan
"as modified" was explained and understood by the parties
present at the hearing, however there are no modifications
to the service plan and the Court corrected item "3" of the
orders on the fourth page of the same document indicating
the service plan was ordered without modification(s).
Father did not object to the ordering of the service plan.
. . . .
28. Between the continuance of the trial on January
27, 2022, and the trial on April 18, 2022, Father filed a
motion for immediate review and a motion to continue the
trial. The first motion cited confusion over the services
that were required by the Court due to the typographical
error in the Order Concerning Child Protective Act filed on
June 9, 2021, as well as Father's counsel not having the
entire case file. Subsequent to the filing of the motions
and prior to the court hearing, Father's counsel had
obtained the remainder of the file that was previously
missing and at the hearing on the motions on March 9, 2022,
the Court clarified with Father and his counsel what was
expected by the Court with respect to the service plan.
The motion to continue was denied at the pretrial hearing
on March 9, 2022.
. . . .
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42. In compliance with the Court ordering the DHS to
refer the Child for therapy to address his relationship
with Father, DHS arranged for the Child to participate in
treatment with his therapist from the Child & Family
Service Ohana Sex Abuse Treatment Program, JESSICA CANDASO
because he already had established a relationship with her.
While repairing a relationship between a child and an
untreated sex offender is not a part of the Child & Family
Service Ohana Sex Abuse Treatment Program, the therapist
conducted sessions and discussed the Child's relationship
with Father and the Child's preference for permanency.
. . . .
57. On June 2, 2021, the court ordered Father to
complete all of the services in the service plan which
includes a psychosexual evaluation, sex offender treatment,
substance abuse assessment and treatment, parenting
classes, cooperate and work in conjunction with the DHS.
Father did not object to the service plan being ordered.
. . . .
64. Under the circumstances presented in this case,
Father was given every reasonable opportunity to effect
positive changes to provide a safe family home and to
reunify with the Child.
65. Father is not presently willing and able to
provide the Child with a safe family home, even with the
assistance of a service plan.
66. Father will not become willing and able to
provide the Child with a safe family home, even with the
assistance of a service plan within a reasonable period of
time, which shall not exceed two years from the [C]hild's
date of entry into foster care.
. . . .
74. [DHS Social Worker] JENNY GAO testified that
Father regularly stated that he did not understand the
service plan and that she continued to explain it to him
verbally and in writing.
The challenged COLs state:
Parental Unfitness
12. The legal mother, legal father, adjudicated,
presumed, or concerned natural father, as defined under HRS
Chapter 578A, are not presently willing and able to provide
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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, we resolve
Father's points of error as follows, and affirm.
Lack of reasonable opportunity to reunify due
to alleged lack of "contact/visitations"
Father first challenges FOF 42 and contends that DHS
failed to provide him with a reasonable opportunity to reunify
with JFJ because DHS did not comply with the Family Court's
order to refer JFJ to a therapist to address his reluctance to
visit or have a relationship with Father, and due to the lack of
"contact/visitations" with JFJ.
"The child protective services . . . shall be provided
with every reasonable effort to be open, accessible, and
communicative to the persons affected by a child protective
proceeding without endangering the safety and best interests of
the child under this chapter." HRS § 587A-2 (2018). "Every
reasonable opportunity should be provided to help the child's
legal custodian to succeed in remedying the problems that put
the child at substantial risk of being harmed in the family
home." Id. "DHS is under an obligation to provide a reasonable
the Child with a safe family home, even with the assistance
of a service plan.
13. It is not reasonably foreseeable that the legal
mother, legal father, adjudicated, presumed, or concerned
natural father, as defined under HRS Chapter 578, will
become willing and able to provide the Child with a safe
family home, even with the assistance of a service plan,
within a reasonable period of time.
The Permanent Plan
. . . .
15. The Permanent Plan dated May 12, 2021, is in the
best interests of the Child.
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opportunity to parents through a service plan to reunify the
family" and "to make reasonable efforts to reunite parent and
child." In re Doe, 100 Hawai‘i 335, 343, 60 P.3d 285, 293 (2002)
(interpreting HRS Chapter 587, the predecessor to HRS Chapter
587A).
Here, substantial evidence shows that DHS re-referred
JFJ for therapy with Jessica Candaso (Candaso) so JFJ could
explore his feelings toward Father and potential reunification
with him; Candaso worked with JFJ to process his feelings about
Father and what JFJ wanted in a relationship with Father; JFJ
told Candaso that he did not want to have contact with Father;
Candaso did not recommend allowing JFJ to have contact with
Father until Father completed sex offender treatment, which
would take one to two years or longer to complete; and at the
time of trial, DHS was not concerned that JFJ had any unresolved
issues regarding Father. Regarding Father's objection to lack
of contact or visitation with JFJ, the Family Court pertinently
found that: JFJ "consistently informed" the DHS social worker,
the guardian ad litem (GAL), and Candaso that he did not want
visits with Father; JFJ told the Family Court in a conference
that he did not want communication with Father; COVID-19
visitation polices at Oahu Community Correctional Center (OCCC),
where Father was incarcerated until January 2022, prohibited
visitation with JFJ; and JFJ was also prohibited from visiting
Father due to the no-contact order in the criminal sexual
assault case against Father. FOFs 43-46. 4 The criminal case
involved allegations of sexual abuse by Father against JFJ's
half-sibling, which occurred when she was 12 years old and
continued until she was 14 years old in 2019, when Father was
4 Unchallenged FOFs are binding on appeal. In re Doe, 99 Hawai‘i
522, 538, 57 P.3d 447, 463 (2002).
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arrested for these sexual abuse allegations. The record does
not reflect that DHS failed to comply with the Family Court's
order. FOF 42 is supported by substantial evidence and is not
clearly erroneous. See In re Doe, 95 Hawai‘i 183, 190, 20 P.3d
616, 623 (2001) (reviewing FOFs under the clearly erroneous
standard of review). Under the circumstances of this case, the
lack of Father's "contact/visitations" with JFJ did not
constitute a denial of a reasonable opportunity to reunify with
JFJ. See Doe, 100 Hawai‘i at 343, 60 P.3d at 293.
Lack of reasonable opportunity to reunify due
to alleged lack of clarity in required services
Father's next argument challenges FOFs 20, 28, 57, 64,
and 74, contending that the Family Court erred by concluding
that there were "reasonable efforts regarding the service plan,"
because DHS did not provide "clarity in the services" he was
required to comply with to reunify with JFJ. Father argues that
there "clearly was confusion and misunderstanding" about what
the Family Court was ordering Father to comply with in order to
reunify with JFJ. Father claims "[t]he only service that was
ever agreed upon and ordered by the trial court was the
parenting." Father argues that at the July 13, 2020 hearing on
the Petition for Temporary Foster Custody, the service plan was
modified to only include parenting services, and that the
psychosexual evaluation, sex offender treatment, and substance
abuse assessment and treatment were removed. Father appears to
claim that the Family Court ordered this "modified" version of
the May 12, 2021 service plan at the June 2, 2021 hearing. The
gist of Father's argument is that because there was confusion
about whether the service plan was modified to only require
parenting services and not the sex offender and substance abuse-
related services, DHS did not make reasonable efforts regarding
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the service plan, and he was denied a reasonable opportunity to
reunify with JFJ.
In challenged FOF 20, the Family Court explained that
it had ordered the May 12, 2021 service plan, without
modification, at a June 2, 2021 hearing. The Family Court
clarified that the "as modified" notation on the June 9, 2021
order was a typographical error, and that the May 12, 2021
service plan was ordered without modification. FOF 20. Our
review of the record supports the Family Court's FOF 20 that an
unmodified version of the May 12, 2021 service plan was ordered
at the June 2, 2021 hearing, and Father's contention that a
modified version of the May 12, 2021 service plan that only
required parenting services and not the remaining services was
ordered, is without merit.
The record reflects that at the July 13, 2020 hearing
on DHS's Petition for Temporary Foster Custody, the Family Court
did modify the February 7, 2020 service plan to only include
parenting services (Modified February 7, 2020 service plan), 5
because parenting services were the only services the parties
thought were available to Father during his incarceration at
OCCC. 6 However, a subsequent May 12, 2021 service plan
reinstated all of the initial services ordered by the Family
Court, including the sex offender and substance abuse-related
services, with no modifications (Unmodified May 12, 2021 service
plan). The Family Court's June 9, 2021 Orders Concerning Child
5 The Modified February 7, 2020 service plan, which is attached as
Exhibit "A" to the Family Court's July 13, 2020 Orders Concerning Child
Protective Act, reflects the Family Court's modification to remove the
psychosexual evaluation, sex offender treatment, and substance abuse
assessment and treatment services, and only includes parenting services.
6 The record reflects that from the time of his January 15, 2020
initial appearance in this case until January 2022, Father was incarcerated
at OCCC, and consequently not able to participate in any services during that
time period -- including the parenting classes that the parties initially
thought were available to Father at OCCC. See FOFs 12, 24, 58.
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Protective Act for the June 2, 2021 hearing stated that the "May
12, 2021" service plan was ordered with the "as modified" box
checked off; but "Exhibit A" attached to the June 9, 2021 order,
is the Unmodified May 12, 2021 service plan with all services
included. The transcript of the June 2, 2021 hearing reflects
that the Family Court ordered the "service plan dated May 12th,
2021," which is the Unmodified May 12, 2021 service plan. The
transcript also reflects that Father did not object to the
Family Court's ordering of the May 12, 2021 service plan, and
that his objection at the hearing was related to communication
issues between Father and JFJ. Thus, substantial evidence
supports the Family Court's finding in FOF 20 that the "as
modified" notation in the June 9, 2021 order was a clerical
error and that the Family Court ordered the Unmodified May 12,
2021 service plan. See Doe, 95 Hawai‘i at 190, 20 P.3d at 623.
The Family Court also found that the DHS social worker
credibly testified that during the time Father was incarcerated
at OCCC, she spoke with Father regarding the service plan, face
to face and via telephone. FOFs 61, 73. In response to
Father's statements that he did not understand the service plan,
the DHS social worker "continued to explain it to him verbally
and in writing." FOF 74. Thus, even if the June 9, 2021 order
contained the typographical error regarding a "modified" May 12,
2021 service plan, the record does not support Father's claim of
confusion over what services he was supposed to complete.
Assuming arguendo there was confusion regarding the
Unmodified May 12, 2021 service plan, the record also reflects
that Father was provided an opportunity to participate in all of
the services when he was released on bail on January 21, 2022.
FOFs 24, 58. On January 27, 2022, after Father's release from
OCCC, DHS made referrals for Father to participate in a
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substance abuse assessment, psychosexual evaluation, sex
offender treatment, and parenting services. Even after being
referred for all services following his release on bail,
however, Father still declined to participate in any services
other than parenting, which had started in April 2022. FOF 59.
Based on the record set forth above and the unchallenged
findings, we conclude that FOFs 20, 28, 57, 64, and 74 are
supported by substantial evidence and not clearly erroneous.
See Doe, 95 Hawai‘i at 190, 20 P.3d at 623. Father's challenge
that he was denied a reasonable opportunity to reunify with JFJ
due to an alleged lack of clarity in the services Father needed
to complete is without merit. See Doe, 100 Hawai‘i at 343, 60
P.3d at 293.
The evidence and unchallenged findings support the
Family Court's parental unfitness determination and
the Permanent Plan
Lastly, Father contends, generally, that the Family
Court's FOFs 65-66 and COLs 12, 13, and 15 were clearly
erroneous.
The record and the Family Court's unchallenged
findings support the Family Court's FOFs 65-66 that Father was
not presently willing and able, nor would he become willing or
able, to provide JFJ with a safe family home within a reasonable
period of time pursuant to HRS § 587A-33(a)(1)-(3). 7 The
7 HRS § 587A-33(a) (2018) provides in pertinent part,
(a) At a termination of parental rights hearing, the court
shall determine whether there exists clear and
convincing evidence that:
(1) A child's parent whose rights are subject to
termination is not presently willing and able to provide
the parent's child with a safe family home, even with the
assistance of a service plan;
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unchallenged findings indicate that Father was an untreated sex
offender unwilling to complete, and incapable of completing, sex
offender treatment within a reasonable time, without which
reunification could not occur. Specifically, the Family Court
found, and Father has not challenged, that: upon review of a
videotaped interview of JFJ's half-sibling, the sexual abuse
allegations she made against Father, consisting of multiple
incidents of digital and penile penetration starting from when
she was 12 years old, were credible; that upon review of a
videotaped interview of JFJ, JFJ's statements regarding the
sexual abuse of his half-sibling that JFJ heard or observed,
were credible; that JFJ consistently told the DHS social worker,
the GAL, and his therapist that he did not want visits with
Father; that JFJ told the Family Court the same during a
conference with the court; that JFJ told the DHS social worker,
the GAL, the therapist, and Father that he wanted to be adopted
by the current resource caregivers; that Father was ordered by
the Family Court to complete sex offender treatment and upon
being released on bail in January 2022, declined to participate
in sex offender treatment; that Father was an "untreated sexual
offender" who had not addressed sex offender treatment for 27
months; and that sex offender treatment generally takes one to
two years and sometimes longer than two years to complete. FOFs
8, 43, 44, 57, 59, 61, 62, 80, 82, 83. Thus, the record and the
Family Court's unchallenged findings support the Family Court's
(2) It is not reasonably foreseeable that the
child's parent whose rights are subject to termination will
become willing and able to provide the child with a safe
family home, even with the assistance of a service plan,
within a reasonable period of time, which shall not exceed
two years from the child's date of entry into foster care;
(3) The proposed permanent plan is in the best
interests of the child. . . .
(Emphases added).
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FOFs 65-66, which are not clearly erroneous. See Doe, 95 Hawai‘i
at 190, 20 P.3d at 623.
For all of the foregoing reasons, COLs 12, 13, and 15,
which contain mixed questions of fact and law, are not clearly
erroneous. See id. (applying clearly erroneous standard of
review to mixed questions of fact and law, which are dependent
on the facts and circumstances of each individual case). We
conclude that Father's contentions on appeal are without merit.
Therefore, for the foregoing reasons, we affirm the
April 20, 2022 Order Terminating Parental Rights filed by the
Family Court of the First Circuit.
DATED: Honolulu, Hawai‘i, January 23, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Tae Chin Kim,
Chief Judge
for Father-Appellant.
/s/ Keith K. Hiraoka
Kurt J. Shimamoto,
Associate Judge
Deputy Attorney General,
for Petitioner-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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