In Re: K.K., G.L., and C.F.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-FEB-2024
07:50 AM
Dkt. 73 SO

NO. CAAP-XX-XXXXXXX

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

IN THE INTEREST OF K.K., G.L. and C.F.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-S NO. 21-00048)

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

Father-Appellant (Father) appeals from the January 20,
2023 Order Terminating Parental Rights and the March 15, 2023
Findings of Fact (FOFs) and Conclusions of Law (COLs), both
entered by the Family Court of the First Circuit (Family Court).1
On appeal, Father contends: (1) there was
insufficient evidence to demonstrate that DHS made reasonable
efforts and/or provided Father with a reasonable opportunity to
reunify with his child, C.F. (Child) because DHS failed to

1 The Honorable Brian A. Costa presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

provide Father with "reasonable visitation or any services while
Father was incarcerated" and made "little to no attempts to
contact" Father during his incarceration; and (2) there was
insufficient evidence that the October 26, 2022 Permanent Plan
(10/26/22 Permanent Plan) was in Child's best interest. In
connection with these points of error, Father challenges FOFs
34-35, 49, 51-52, 67, 82-84, 88-91, 93-95, and COLs 11-14.
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 contentions below, and affirm.
The record and the Family Court's unchallenged
findings reflect the following.2 On March 3, 2021, Petitioner-
Appellee Department of Human Services (DHS) filed a "Petition
for Temporary Foster Custody of Child" (Petition) after police
took Child into protective custody as a result of Mother-
Appellee (Mother) and Mother's boyfriend's (not Father) failure
to "provide a safe and sober environment for the children."
Father was "not deemed . . . a perpetrator of harm at the time
of the DHS' intervention[.]" On March 5, 2021, the Family Court
granted temporary foster custody of Child to DHS and Child
entered foster custody the same day.
On April 25, 2021, Child's guardian ad litem (GAL)
reported informing Father that the GAL was concerned with
placing Child with Father because Father lived in the same
building as Mother. DHS had several concerns about Mother,
including, without limitation, her inability to provide a safe
family home for Child due to her substance abuse and domestic
violence issues, and she showed no signs of rehabilitation.
According to the DHS social worker Makela Aluesi's (Aluesi)

2 Unchallenged findings of fact are binding on the appellate court.
Balogh v. Balogh, 134 Hawai‘i 29, 33 n.3, 332 P.3d 631, 635 n.3 (2014).

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June 21, 2021 report, Father attended scheduled visitations with
Child from May 19, 2021.
Father failed to appear at court hearings scheduled
for May 27, 2021, June 28, 2021, January 31, 2022, and was
defaulted. FOFs 21, 22, 27. The service plan gave Father a
number of tasks "based on the safety issues" outlined in the
"Safe Family Home Report," requiring Father to participate in
substance abuse assessment and treatment, a psychological
evaluation and treatment, parenting classes, home-based
services, and to cooperate with the DHS social worker. As of
the January 11, 2022 Safe Family Home Report, Aluesi reported
that Father was "fairly consistent with visitations but sporadic
with communication with DHS."
On March 10, 2022, Mother informed Aluesi that Father
had been arrested. Father was incarcerated at O‘ahu Community
Correctional Center (OCCC) from February 2022 until January 10,
2023 for a probation violation. FOF 64.

On April 20, 2022, DHS filed a motion to terminate
parental rights (TPR Motion) and sought a permanent plan
proposing adoption or permanent custody of Child. At the
January 18, 2023 trial on the TPR Motion, the Family Court
granted the motion and ordered the termination of Father's
parental rights to Child. On March 15, 2023, the Family Court
entered FOFs and COLs in support of its order terminating
Father's parental rights.

The family court's determinations . . . with respect to
(1) whether a child's parent is willing and able to provide
a safe family home for the child and (2) whether it is
reasonably foreseeable that a child's parent will become
willing and able to provide a safe family home within a
reasonable period of time present mixed questions of law
and fact; thus, inasmuch as the family court's
determinations in this regard are dependant upon the facts
and circumstances of each case, they are reviewed on appeal
under the clearly erroneous standard. Likewise, the family
court's determination of what is or is not in a child's
best interests is reviewed on appeal for clear error.
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In re G.L., No. CAAP-XX-XXXXXXX, 2021 WL 3056662, at *2 (Haw.
App. July 20, 2021) (SDO) (citation omitted).
(1) Father argues there was "insufficient evidence for
the lower court to find that DHS made reasonable efforts to
reunify [Father]" and a "reasonable opportunity to reunify with
his Child prior to termination of his parental rights."
Specifically, Father claims that DHS failed to provide Father
with services and visits with Child while he was incarcerated,
failed to contact Father while he was incarcerated, and failed
to give Father reasonable opportunity to "demonstrate his
ability to provide a safe family home" while he was
incarcerated. The record does not support Father's claims.
The record and the unchallenged findings reflect that
during the period that Father was incarcerated, DHS had sent a
certified letter to Father at OCCC informing Father that DHS had
been attempting to contact him, and requested Father contact
DHS; Aluesi sent letters, attempted phone calls, and tried to
offer a phone call with Child through the OCCC case manager.
DHS, however, did not receive any contact from Father until
January 17, 2023, the day before the TPR trial. Father had been
released from OCCC on January 10, 2023, on supervised release
into the Ho‘omau Ke Ola residential substance abuse program.
FOFs 64-66. DHS did not know that Father had completed a
substance abuse assessment in January 2023, which recommended
residential treatment. FOF 65. The Family Court found that
during his incarceration, Father "did not make efforts to call
or contact the DHS," as required in the court-ordered service
plan. FOF 74.
By the time of the January 18, 2023 TPR trial, Child
had been in continuous foster custody for approximately 22
months. FOF 44. Father was also pending resentencing at the
time of the TPR trial. FOF 64. At the point Father was
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released from OCCC on January 10, 2023, Father had to remain in
the Ho‘omau Ke Ola program for 60-75 days and needed 7-10 months
of treatment to be clinically discharged. FOFs 66, 68-70.
The record reflects that it was not reasonably
foreseeable that Father would become able, even with a service
plan, to provide a safe home for Child within a reasonable
period of time, since Child had been in continuous foster
custody for about 22 months by the time of the TPR trial.3
See Hawaii Revised Statutes (HRS) § 587A-33(a) (2018); In re
M.P., No. CAAP-XX-XXXXXXX, 2019 WL 1614717, at *2 (Haw. App.
Apr. 16, 2019) (SDO) (counting father's incarceration period in
the HRS § 587A-33(a)(2) maximum time). Accordingly, FOFs 34-35,
67, 82-84, and 94, and COLs 11-12, which are mixed findings and
conclusions, are not clearly erroneous. See In re G.L., 2021 WL
3056662, at *2.
(2) Father contends that the Family Court erred in
concluding that the 10/26/22 Permanent Plan is in Child's best
interest, and challenges FOFs 88-91 and COLs 13-14, because
(a) the Resource Caregivers' (RCGs) home that they had recently
moved to was not yet licensed; and (b) the GAL did not testify
as to whether the 10/26/22 Permanent Plan was in Child's best
interest.4
The Family Court had authorized DHS to place Child
with RCGs in Michigan following a home study, on April 22, 2022.

3 "Two years is the maximum, not minimum, amount of time within
which a parent must become willing and able to provide a safe family home."
In re A.K., No. CAAP-XX-XXXXXXX, 2022 WL 1134991, at *3 (Haw. App. Apr. 18,
2022) (SDO) (citation omitted).
4 Father presented no argument or authority to support his
additional contention that the "goal of the Permanent Plan was adoption to an
appropriate caregiver but did not specify who was the appropriate caregiver
for which child." We do not address it, but note that "[s]pecification of
adoptive parents is not required in a proposed permanent plan under [HRS]
§ 587A-32 (Supp. 2013)." In re S.P., No. CAAP-XX-XXXXXXX, 2014 WL 1658601,
at *1 (Haw. App. Apr. 25, 2014).

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FOF 40. Child was still living with RCGs at the time of the TPR
trial. FOF 47. Child was bonded to RCGs, and said she wanted
to change her name, remain with RCGs, and felt safe in RCGs'
home. FOF 48. The record reflects that Aluesi testified that
the 10/26/22 Permanent Plan "with the goal of adoption" by
maternal relative RCGs was in Child's best interest. While the
home where Child was, was not yet licensed at the time of the
TPR trial, the DHS was not required to designate a licensed home
because the 10/26/22 Permanent Plan's goal was adoption. Aluesi
testified the Permanent Plan was still in Child's best interest,
and for Child to remain with the RCGs in Michigan even though
the home was not yet formally licensed. The Family Court found
Aluesi's testimony, as an expert witness in child protective and
welfare services, to be credible. FOFs 97, 100, 101.
Father cites no authority for his assertion that the
GAL needed to be sworn in and testify at the TPR trial to have
made this recommendation. In closing argument, the GAL stated
agreement with Aluesi that the 10/26/22 Permanent Plan was in
the best interest of Child, and urged the Family Court to grant
the TPR Motion. This was appropriate in his capacity as GAL.
See In re K Children, 120 Hawai‘i 116, 122, 202 P.3d 577, 583
(2007).5 Accordingly, FOFs 88-91 and COL 13-14, which are mixed

5 In re K Children states:

The guardian ad litem should, except for actual factual
statements such as the expressed wishes of the
child/ward/protected person, or perhaps the actions of the
child/ward/protected person to [the] extent actually
observed by the guardian ad litem, mainly analyze and
recommend based on the visitor's report or other credible
evidence or documents and the guardian ad litem's
perception of the best interests standard.

120 Hawai‘i at 122, 202 P.3d at 583 (quoting Robert L. Aldridge, Idaho State
Bar, Ethics and the Attorney as Guardian Ad Litem, 49 ADVOC. 21 (June 2006)).

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findings and conclusions, are not clearly erroneous. See In re
G.L., 2021 WL 3056662, at *2.
For the reasons discussed above, we affirm the January
20, 2023 Order Terminating Parental Rights and the March 15,
2023 Findings of Fact and Conclusions of Law by the Family Court
of the First Circuit.
DATED: Honolulu, Hawai‘i, February 8, 2024.
On the briefs:
/s/ Clyde J. Wadsworth
Crystal M. Asano,
Presiding Judge
for Appellant-Father.
/s/ Karen T. Nakasone
Kellie M. Kersten,
Associate Judge
Julio C. Herrera,
Deputy Attorneys General
/s/ Sonja M.P. McCullen
for Petitioner-Appellee
Associate Judge
The Department of Human
Services.

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