In re: M Children MM, CM1, JM, CM2, PM, UBBM and CM3

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-MAY-2022
08:18 AM
Dkt. 150 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF M CHILDREN:
MM, CM1, JM, CM2, PM, UBBM
(FC-S NO. 17-00216)

IN THE INTEREST OF CM3
(FC-S NO. 19-00222)

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Mother-Appellant/Cross-Appellee (Mother) appeals and

Father-Appellee/Cross-Appellant (Father) cross-appeals from the

Family Court of the First Circuit's (Family Court) October 1,

2021 Orders Terminating Parental Rights.1

Upon careful review of the record and the briefs

submitted by Mother and Father (collectively Parents) and having

given due consideration to the arguments advanced and the issues

raised, we resolve Parents' arguments as follows, and affirm.

The Family Court may grant a motion to terminate

parental rights where the following occurs:

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The Honorable John C. Bryant, Jr., presided over a consolidated
trial.
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(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;

(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. In reaching this
determination, the court shall:

(A) Presume that it is in the best interests
of the child to be promptly and
permanently placed with responsible and
competent substitute parents and family in
a safe and secure home; and
(B) Give greater weight to the presumption
that the permanent plan is in the child's
best interest, the younger the child is
upon the child's date of entry into foster
care; and

(4) The child consents to the permanent plan if the
child is at least fourteen years old, unless the
court consults with the child in camera and
finds that it is in the best interest of the
child to proceed without the child's consent.

Hawaii Revised Statutes (HRS) § 587A-33(a) (2018).

We review the Family Court's findings of fact (FOF) for

clear error and will vacate only when the record lacks
substantial evidence to support the finding, or despite

substantial evidence, we are left with a definite and firm

conviction that a mistake has been made. In re Doe, 95 Hawai#i

183, 190, 20 P.3d 616, 623 (2001). "Substantial evidence" is

"credible evidence which is of sufficient quality and probative

value to enable a person of reasonable caution to support a

conclusion." Id. Unchallenged FOF are binding on appeal. In re

Doe, 99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002). Likewise, we

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review conclusions of law (COL) that present mixed questions of

law and fact for clear error, which include determinations of

whether a parent is willing and able to provide a safe family

home and what is in a child's best interests. In re JM, 150

Hawai#i 125, 137, 497 P.3d 140, 152 (App. 2021).

(1) Mother contends that Petitioner-Appellee/

Cross-Appellee Department of Human Services (DHS) "failed to

establish by clear and convincing evidence that mother is not

willing and able to provide a safe family home for [MM, CM1, JM,

CM2, PM, UBBM, and CM3 (collectively Children)] even with the

assistance of a service plan or in the foreseeable future" and

that the "permanent plan with the goal of adoption to current

resource caregiver is not in the Children's best interest."

(Formatting altered.)

In doing so, Mother challenges FOF 84, 140-143, 146,

158, 160, 177-179, 183, 185, 187, 189, 190, and 192 and COL 12,

13, and 15-17. Mother indicates the bases for her objections to

these FOF and COL as set forth in her argument as follows:

(a) DHS failed to make reasonable reunification efforts because

Mother required a Marshallese interpreter for her services, and

DHS failed to provide one until 2020; (b) DHS failed to provide

Mother written materials in Marshallese; (c) though DHS provided

Mother a list of Marshallese therapists, none were willing to

assist her; (d) Mother and Children miss each other; (e) DHS did

not take into account her cognitive deficiencies by ensuring that

service providers confirmed she understood her services; and

(f) she believes reunification is in Children's best interests.

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The undisputed FOF, however, indicate that Mother's

services were explained to her with the assistance of a

Marshallese interpreter, and she does not contend she was

otherwise unable to understand them. FOF 147. Mother was

inconsistent in participating in the services offered. She

failed to complete outreach and counseling services, and did not

attend these services because she forgot, overslept, or

remembered too late. FOF 66, 150, 151, 152, 153, 154, and 156.

Mother had a translator for her domestic violence
services with Parents and Children Together (PACT), but she

failed to appear at eight sessions. She eventually declined to

have an interpreter present, and PACT ultimately closed her case

due to her non-attendance. FOF 150, 151. After DHS re-referred

Mother to the PACT services and she completed them, she did not

learn and integrate the skills offered. FOF 152. Mother had an

interpreter for her parenting sessions with Comprehensive

Counseling and Support Services (CCSS), but CCSS closed her case

due to her non-compliance. FOF 153, 154.

In October 2019, DHS referred Mother to Marshallese
therapists, but Mother did not refer herself to the service

provider until June 2021, one month before trial. FOF 159. The

DHS-assigned social worker informed CCSS that Mother "would

require more help and one-on-one" time, and Mother points to no

evidence that DHS or service providers did not consider her

cognitive abilities.

Finally, Mother's arguments that she and Children miss

each other and that she believes it is in their best interests to

be returned to her do not demonstrate a lack of substantial

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evidence or give reason to believe a mistake was made. In re

Doe, 95 Hawai#i at 190, 20 P.3d at 623. In sum, Mother fails to

show that the record lacks substantial evidence to establish the

elements of HRS § 587A-33(a), or that the Family Court otherwise

manifestly abused its discretion in terminating her parental

rights. In re AA, 150 Hawai#i 270, 283, 500 P.3d 455, 468

(2021).

(2) Father contends that "[t]here was not sufficient

evidence for the court to have found by clear and convincing
evidence that [he was] not presently nor in the reasonably

foreseeable future, be willing and able to provide the Children

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

plan." In doing so, Father challenges FOF 180-182, 190, and 192,

and COL 12 and 13.

To support his contention, Father argues that DHS

failed to provide reasonable reunification efforts because:

(a) DHS's service plan only ordered him to do urinalysis tests

and no other services despite his unresolved domestic violence

issues; (b) when asked whether there was a possibility of
reunification, the DHS social worker testified that DHS's only

goal was termination of parental rights; (c) DHS failed to meet

Father's request for couples' counseling; (d) he was not

appointed counsel for Hawai#i Family Drug Court (Drug Court); and

(e) Mother's Family Court translator did not accurately translate

her testimony.

Father, however, fails to identify any objection to the

Family Court's finding of reasonable efforts or a timely claim

for additional services. In re Doe, 100 Hawai#i 335, 343-44, 60

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P.3d 285, 293-94 (2002). Notwithstanding, DHS's service plans

consistently required services to address all his safety issues

and pursued a goal of reunification. It was not until the months

preceding trial that the Family Court discontinued mandatory

services and DHS changed its permanency goal to termination of

parental rights.

Moreover, Father fails to show how this was

unreasonable in light of Father's failure to progress in services

and resolve his safety issues. Cf. In re Doe, 100 Hawai#i at 344
n.15, 60 P.3d at 294 n.15 (noting that it was reasonable for DHS

to engage in only three months of reunification efforts with the

mother due to her "continued failure to appear before the court

at any of the previously scheduled hearings and her express

unwillingness to participate in any service programs").

Additionally, Father points to no evidence that DHS failed to

meet a request for couples' counseling. And Father did not

object to the Family Court's finding that he waived his right to

counsel for Drug Court, and he fails to explain the nature of the

alleged inaccuracies by Mother's court translator or how they
prejudiced him.

Finally, substantial evidence supported termination of

Father's parental rights. Not only did Father consistently fail

to progress in his services, but his substance abuse and domestic

violence issues remained unresolved in the months leading up to

trial, as evidenced by his methamphetamine relapse in March 2021,

and Parents' incidents of violence, including Father throwing

furniture in Children's presence, resulting in CJM returning to

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foster custody in April 2021. FOF 66, 67, 69-71, 116, 133, and

164.

In sum, Father fails to show that the record lacks

substantial evidence to establish the elements of HRS § 587A-

33(a), or that the Family Court otherwise manifestly abused its

discretion in terminating his parental rights. In re AA, 150

Hawai#i at 283, 500 P.3d at 468.

For the foregoing reasons, we affirm the Family Court's

October 1, 2021 Orders Terminating Parental Rights.
DATED: Honolulu, Hawai#i, May 25, 2022.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Rebecca S. Lester,
for Mother-Appellant/ /s/ Clyde J. Wadsworth
Cross-Appellee. Associate Judge

Tae Chin Kim, /s/ Sonja M.P. McCullen
for Father-Appellee/ Associate Judge
Cross-Appellant.

Maria F. Williams
Julio C. Herrera,
Deputy Attorneys General,
for Petitioner-Appellee/
Cross-Appellee,
Department of Human Services.

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