In re: J-A W-C, Born on 00/00/2022

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JAN-2025
08:28 AM
Dkt. 51 SO

NO.CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

IN THE INTEREST OF J-A W-C,
Born on 00/00/2022

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 22-00012)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka, and McCullen, JJ.)

Mother-Appellant S.W. (Mother) appeals from the Order

Terminating Parental Rights (TPR Order) filed on April 22, 2024,

in the Family Court of the First Circuit (Family Court).1

J.W. (Child) was born in early 2022 and tested positive

for methamphetamine at birth. A social worker for Petitioner-
Appellee Department of Human Services (DHS) interviewed Mother,

and Mother admitted using methamphetamine 1-2 times a week

throughout her pregnancy, including on the day of Child's birth.

A Honolulu Police Department officer took protective custody of

Child and transferred custody to DHS. DHS filed a Petition for

Temporary Foster Custody on January 18, 2022.

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The Honorable Lesley N. Maloian presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On January 12, 2023, DHS filed its Motion to Terminate

Parental Rights. The Family Court initially granted DHS's motion

on October 25, 2023, after a continued permanency hearing that

Mother (again) failed to attend. On October 26, 2023, Mother

petitioned to have the October 25, 2023 Order Terminating

Parental Rights set aside, which the Family Court granted.

Mother nevertheless failed to appear for the rescheduled trial on

April 22, 2024, and the Family Court entered the TPR Order that

is the subject of this appeal.
Mother raises multiple points of error on appeal,

contending that the DHS failed to establish by clear and

convincing evidence that: (1) Mother is not presently willing

and able to provide Child with a safe family home, even with the

assistance of a service plan; (2) it was not reasonably

foreseeable that Mother would become willing and able to provide

Child with a safe family home, even with the assistance of a

service plan, within a reasonable period of time, not to exceed

two years from Child's date of entry into foster care; (3) DHS

exerted reasonable efforts to reunite Child with her; (4) Mother

was given every reasonable opportunity to effectuate positive

change to reunify with Child; (5) DHS treated Mother and Father

(collectively, Parents) fairly and serviced the entire family

since the inception of DHS and Family Court intervention; and (6)

the Permanent Plan dated January 4, 2023 (Permanent Plan), with

the goal of adoption by a non-relative resource care giver, is in

Child's best interest, rather than a permanent plan that

specifically ensures continued family contact with Mother and the

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Child's sibling. Mother identifies Findings of Fact (FOFs) 118-

120, 125, 129-130, 133, and 142 as clearly erroneous, and FOFs

1-4 and Conclusions of Law as "general errors."

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 Mother's

points of error as follows:2

(1) Mother argues that the Family Court's finding that

DHS made reasonable efforts to reunify Child with Mother is
clearly erroneous because the DHS social worker did not meet with

Mother during June, August, September, and October 2022, and

February and May 2023, and DHS submitted a Safe Family Home

Report to the Family Court late.

Mother, who did not appear in court at either the first

or the second trial scheduled on DHS's motion to terminate

parental rights, raises this argument for the first time on

appeal. See Williams v. Aona, 121 Hawai#i 1, 8, 210 P.3d 501,

508 (2009) ("As a general rule, if a party does not raise an

argument at trial, that argument will be deemed to have been

waived on appeal; this rule applies in both criminal and civil

cases.") (cleaned up). This argument is waived.

Nevertheless, based on the record on appeal, it appears

that during DHS's periods of no-contact with Mother, Mother was,

inter alia, continuing to abuse drugs. For example, Mother

entered the Women's Way program on October 12, 2022, in

2
We address Mother's challenges to the extent she presents
arguments on them. See Rules Expediting Child Protective Appeals Rule
11(a)(4) (requiring concise legal argument about each point of error.)

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possession of methamphetamine and drug paraphernalia, and tested

positive on the day of admission. Mother left the Women's Way

program on October 14, 2022, leaving behind her personal

belongings, including her cell phone, and did not make further

contact with DHS until November 8, 2022. On February 25, 2023,

Mother gave birth to a second child, and both Mother and her

second child tested positive for methamphetamine.

Jennifer Tetnowski, who was qualified as an expert in

child welfare services and social work, testified that
communication with Mother was not always good, and Mother was

"very aggressive with me via text message and in person, with

threats, swearing, just yelling." Tetnowski testified that when

Mother would act aggressively, she would attempt to diffuse the

situation by disengaging, and then would attempt to reach out to

Mother a day or two later.

Mother offers no discernible argument as to how the

tardy submission of one report by DHS impacted efforts at

reunification.

Given the ongoing substance abuse by Mother, and

resulting communication difficulties, the Family Court's finding

that reasonable efforts at reunification were made is not clearly

erroneous.

(2) Mother contends that the Family Court's finding

that DHS provided her every reasonable opportunity to reunify

with Child is clearly erroneous. Mother again points to the

times when the DHS social worker did not have contact with her.

She adds that her relationship with the social worker was

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"clearly a hostile one" because Mother disagreed with DHS

removing Child from a relative foster home, believed the social

worker lied, and refused to communicate with the social worker.

Once foster custody of the Child was awarded to DHS,

DHS was charged with determining where and with whom the Child

was placed, subject to periodic review by the Family Court to

ensure that the child was receiving appropriate services and

care. Hawaii Revised Statutes §§ 587A-15(b)(1) (2018); 587A-

30(a),(b) (2018). Mother's disagreement with DHS on placement
does not establish that Mother was denied a reasonable

opportunity to reunify with Child.

Unchallenged findings of the Family Court establish

that Mother was offered appropriate services and repeatedly

failed to comply with recommended treatment.3 At no point in

3
The following FOFs are unchallenged:

88. Mother failed to comply with the recommendations
of the psychological evaluation she completed on September
21, 2022, which included individual therapy, substance abuse
assessment and recommended treatment, and parenting
services. The foregoing services were ordered by the Court
as part of the DHS Family Service Plans. [(footnote
omitted)].
89. Mother failed to complete Comprehensive
Counseling and Support Services ("CCSS"), which included
parenting education, hands-on-parenting, and counseling.
The CCSS case was closed by providers because Mother missed
numerous sessions without rescheduling and failed to
maintain consistent communication with service providers.

90. Mother disclosed ongoing domestic violence with
Father to DHS. Mother failed to complete a domestic
violence assessment or complete any domestic violence
courses.
91. Mother was not consistent with scheduled
visitation with Child. On multiple occasions Mother's
visitation with Child was suspended due to her having missed
three (3) or more consecutive scheduled visits.

92. Mother has unresolved substance abuse issues,
(continued...)

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these proceedings did it appear that Mother was making progress

towards resolving the problems that necessitated placement. The

Family Court's determination that DHS provided Mother every

reasonable opportunity to reunify with Child is supported by

substantial evidence and is not clearly erroneous.

(3) Mother argues that the Family Court's finding that

DHS's Permanent Plan with the goal of adoption is in the best

interest of Child is clearly erroneous because there are no

specific provisions to accomplish continued family contact for
Mother and Child's sibling.

DHS's Permanent Plan, specifies that Mother continues

to have visitation, and DHS would talk to resource caregivers

about maintaining family connections. When petitioning for

approval for the resource caregivers to relocate out of state,

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(...continued)
and she has continued to use illegal substances. Mother
failed to complete substance abuse treatment and tested
positive for methamphetamines throughout this case.

93. Mother failed to complete a substance abuse
assessment as ordered by the Court and failed to complete
urinalysis tests to confirm her sobriety.

94. On October 12, 2022, Mother entered the Women's
Way Program for substance abuse treatment and was found in
possession of methamphetamine and drug paraphernalia.
Mother also tested positive for methamphetamine upon her
admission into the Program. Mother left the Program after
only two (2) days, without a clinical discharge.
. . . .
98. Based upon the credible expert testimony of the DHS SW
Tetnowski, as well as the credible evidence, Mother was given a
reasonable amount of time to complete her recommended services and
failed to demonstrate her ability to provide a safe stable home
for the Child.

99. Based upon the credible expert testimony of the
DHS SW Tetnowski, as well as the credible evidence, Mother
has not made progress in services to address the safety
issues in this case and has not demonstrated her ability to
provide a safe family home with the assistance of a service
plan within a reasonable time period.

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due to military assignment, DHS represented that it would offer

and arrange for the Child's Parents to have virtual or zoom

visits upon resource caregivers' relocation. This case included

multiple placements for Child before being placed with the

current resource caregivers. Under the circumstances of this

case, including Mother's continued methamphetamine abuse, we

cannot conclude based on Mother's arguments concerning visitation

that the Family Court erred in determining that the Permanent

Plan is in Child's best interests.
For these reasons, the Family Court's April 22, 2024

TPR Order is affirmed.

DATED: Honolulu, Hawai#i, January 9, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Crystal M. Asano,
for Mother-Appellant.
/s/ Keith K. Hiraoka
Simeona A. Mariano, Associate Judge
Julio C. Herrera,
Ian T. Tsuda,
Abigail S. Dunn Apana, /s/ Sonja M.P. McCullen
Deputy Attorneys General Associate Judge
Department of the Attorney
General
for Petitioner-Appellee.

Brandon K. Eugenio,
(Arakaki & Eugenio)
for Guardian Ad Litem.

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