In re: KD1, KD2 and AW

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2022
07:33 AM
Dkt. 109 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF KD1 AND KD2
(CASE NO. FC-S 17-0093K)

AND

IN THE INTEREST OF AW
(CASE NO. FC-S 17-0095K)

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(KONA DIVISION)

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

Appellant Mother (Mother) appeals pro se from: (1) the

Order Granting Motion to Terminate Parental Rights, and Denying

Mother's Motion for Reunification filed on December 8, 2020, in

FC-S No. 17-0093K; and (2) the Order Granting Motion to Terminate

Parental Rights, and Denying Mother's Motion for Reunification

filed on December 8, 2020, in FC-S No. 17-0095K, which were both
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filed in the Family Court of the Third Circuit (Family Court).1

On July 30, 2021, the Family Court entered an Amended Order

Granting Motion to Terminate Parental Rights and Denying Mother's

Motion for Reunification, which adjudicated a request to amend

the court's prior orders (Amended Order); no appeal was filed

from the Amended Order.

In FC-S No. 17-0093K, Mother's parental rights to two

of her children (KD1 and KD2) were terminated. In FC-S No. 17-

0095K, Mother's parental rights to a third child (AW) were

terminated.

On appeal, Mother does not state points of error in

compliance with applicable rules (see Rule 11(a) of the Rules

Expediting Child Protective Appeals), but contends that: (1)

there was a lack of facts and circumstances required to establish

the Family Court's original jurisdiction under Hawaii Revised

Statutes (HRS) §§ 587A-5 (2018) and 571-11(9) (Supp. 2020); (2)

Petitioner-Appellee the State of Hawai#i, Department of Human

Services (DHS), failed to provide reasonable efforts to prevent

removal of the children and reunify the family; (3) there was not

clear and convincing evidence Mother was not presently willing

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

of a service plan; (4) there was not clear and convincing

evidence it was not reasonably foreseeable Mother would become

1/
The Honorable Joseph P. Florendo, Jr. presided.

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

assistance of a service plan, within a reasonable period of time;

(5) citing In re T.M., 131 Hawai#i 419, 319 P.3d 338 (2014),

Mother disputes that "[t]he Court has provided Mother and Father

with adequate legal representation;" (6) the Family Court erred

by finding the permanent plan was in the best interest of her

children; and (7) Findings of Fact (FOFs) A, C2, G, G4, I, J, L,

Z, BB, DD, and EE and Conclusions of Law (COLs) 1, 2, 5, and 6

are erroneous.

The challenged FOFs and COLs are as follows:
FINDINGS OF FACT

A) The Court finds that the Department has presented
clear and convincing evidence that:

1) [KD1] and [KD2]'s legal mother, legal father,
adjudicated, presumed, or, concerned father as
defined under HRS Ch. 578 are willing, but not
presently able to provide the children with a
safe family home, even with the assistance of a
service plan, and,

2) It is not reasonably foreseeable that [KD1]
and [KD2]'s legal mother, legal father
adjudicated and presumed, or concerned father as
defined under HRS Ch. 578 will become willing
and able to provide the children with a safe
family home, even with the assistance of a
service plan within a reasonable period of time,
which shall not exceed two (2) years from the
children's date of entry into foster care
(emphasis added);

3) [AW]'s legal mother, legal father,
adjudicated, presumed, or, concerned father as
defined under HRS Ch. 578 are willing, but not
presently able to provide the children with a
safe family home, even with the assistance of a
service plan, and,

4) It is not reasonably foreseeable that [KD1]
and [KD2]'s legal mother, legal father
adjudicated and presumed, or concerned father as
defined under HRS Ch. 578 will become willing
and able to provide the children with a safe
family home, even with the assistance of a

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service plan within a reasonable period of time,
which shall not exceed two (2) years from the
children's date of entry into foster care
(emphasis added); 2

. . . .
C) Less than a month later, on January 3, 2018, the
Department of Human Services (hereinafter DHS) filed a
Supplemental Safe Family Home Report,

. . . .

2) On February 27, 2018 Joan Jackson, who was
appointed to represent Mother appeared in court,
however Mother failed to appear;

. . . .

G) The court has provided Mother and Father with adequate
legal representation;

. . . .

4) Mother failed to appear at a hearing on
February 27, 2018;

. . . .

I) Mother was subsequently placed on deferred status on
August 20, 2018, however because she violated the
terms of her deferred sentence by testing positive for
methamphetamine eight (8) times between December 2018
and March 2020, her deferred status was revoked and
she was convicted and placed on probation on March 6,
20204;
4
Testimony of Wendy Mitchell

J) On or about January 29, 2019 Mother was discharged
from Lokahi Outpatient Treatment program because she
failed to show up for a random test on August 13,
2018, tested positive for methamphetamine on November
13, and December 20, 2018, and failed to abide by a
"last chance behavioral contract", further inpatient
residential treatment was recommented 5;
5
Supplemental Safe Family Home Report filed
January 29, 2019.

. . . .

L) Mother completed the Access Capabilities outpatient
program in May 2020, however, the Department of Human
Services does not find that Mother's completion of

2/
Paragraph 4) refers to KD1 and KD2, instead of AW, by mistake.
This error was corrected in the Amended Order.

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this outpatient program satisfies the Service Plan's
requirement of an in-patient recovery program 9;
(footnote 8 omitted)
9
Testimony of Tina Haalilio see also
February 23, 2020 Safe Family Home Report
which includes a December 19, 2019 Memo
from Dr. Christopher Au of Access wherein
he opines: "... a stint of residential
care should give her the structure and
starting point for lifelong sobriety. Due
to her emotional stressors outpatient may
not be the most appropriate level of care
without at least a month of sobriety under
her belt."

. . . .

Z) The earliest that Mother would be able to complete the
required inpatient substance abuse counseling, which
the DHS would require prior to reunification, would be
six (6) months from the date of the hearing on this
matter, and more than two (2) years from the date that
children entered foster care; (footnote omitted)

. . . .

BB) All three (3) children have improved behaviors and are
doing well in their respective placements;

1) Freida Pavao, [AW]'s resource care giver, testified
that [AW] is no longer taking medications, that her
tantrums have stopped, and the lack of in-person
visits with Mother have led to improved behavior
overall;

2) Maile Pavao, [AW]'s mental health therapist,
reports that [AW] is no longer taking medications, and
her behavior has improved;

3) [AW] requires a structured, consistent environment;

. . . .

DD) The proposed Permanency Plan, which is attached hereto
as Exhibit "A" is in the best interests of the
children;

EE) Under the circumstances that are presented in this
case, DHS has made reasonable efforts to finalize the
permanency plan which in this care is permanent out of
home placement; (footnote omitted).

. . . .

CONCLUSIONS OF LAW

1) DHS has proven by clear and convincing evidence that
Mother and/or Father, while they may be willing, are

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not presently able to provide the parent's children
with a safe family home, even with the assistance of a
service plan; and [(emphasis added)]

2) That while Mother and Father may be willing, it is not
reasonably foreseeable that the Mother and/or Father,
whose rights are subject to termination, will become
able to provide the children with a safe home, even
with the assistance of a service plan, within two (2)
years from the children's date of entry into foster
care [(emphasis added)];

. . . .

5) It is in the best interests of the children, who are
ages 5, 7, and 10, that they be promptly and
permanently placed with responsible and competent
substitute parents and family in a safe and secure
home;

6) The proposed permanency plan is in the best interests
of the children[.]

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 by the parties, we

resolve Mother's contentions as follows:

(1) Mother contends that the Family Court erred in its

invocation of jurisdiction in the March 13, 2018 Orders

Establishing Family Court Jurisdiction filed in FC-S Nos. 17-

0093K and 17-0095K. The Family Court found, inter alia, that

"[t]here exists an adequate basis to invoke Family Court

jurisdiction. . . . Jurisdiction is based on harm and threatened

harm to the children due to parental substance abuse, domestic

violence, and the failure to cooperate with voluntary services."

Mother argues that "[t]he ultimate question is whether, on the

record before the court, there was evidence that the family court

found that the child's physical or psychological health or

welfare had been harmed or was subject to threatened harm by the
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acts or omissions of the child's family." Mother argues that

"[w]ithout having a signed affidavit from a credible witness, any

relevant hearsay is inadmissible as evidence in any ruling."

It appears that the Family Court continued the

temporary foster custody hearings in both cases several times

until its determination and invocation of jurisdiction on March

13, 2018. Mother does not point to where in the record she

objected on the basis of hearsay or lack of a signed affidavit,

the record on appeal does not contain transcripts from the

December 21, 2017, January 3, 2018, February 7, 2018, and March

13, 2018 hearings that preceded the courts invocation of

jurisdiction, and nothing in the court's minutes indicate that an

evidentiary objection was raised. Therefore, we conclude that

this argument was waived. See Hawai#i Rules of Appellate

Procedure (HRAP) Rule 28(b)(4); see also Bettencourt v.

Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995).

Mother also disputes the change from family supervision

of KD1 and KD2 to foster custody on June 5, 2018, due to alleged

drug use and pending criminal charges for three counts of

Promoting a Dangerous Drug in the Third Degree, one count of

Promoting a Detrimental Drug in the Third Degree, and one count

of Drug Paraphernalia, on the grounds that she was denied her

right to a contested hearing, and that the Family Court erred by

granting temporary foster custody on June 12, 2018, because

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"[t]he Children were never in imminent danger, or at risk of

harm."

However, the record indicates that on June 12, 2018,

Mother objected to foster custody and a contested hearing was

scheduled. The record further indicates that a contested hearing

on foster custody was held on November 16, 2018. Transcripts for

the June 12, 2018 hearing, and the November 16, 2018 contested

case hearing are not in the record on appeal. Therefore, this

court is unable to review Mother's arguments that the children

were not in imminent danger or at risk of harm. See Bettencourt,

80 Hawai#i at 230, 909 P.2d at 558.

Mother further argues that no investigation was done to

determine whether it was necessary or advisable to take KD1 and

KD2 into custody. See HRS § 587A-11 (2018) ("Upon receiving a

report that a child is subject to imminent harm, has been harmed,

or is subject to threatened harm, and when an assessment is

required by this chapter, the department shall cause such

investigation to be made as it deems to be appropriate.")

However, a Safe Family Home Report, dated December 13, 2017,

provided a history of DHS's involvement with the family and

explained the reason for assuming temporary foster custody of KD1

and KD2. The family was in Voluntary Case Management, Mother

cancelled six appointments for a substance abuse assessment,

between February 28, 2017 and July 31, 2017, Mother did not show

up to five drug tests and tested positive once for amphetamines

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and methamphetamines. Father was referred for a substance abuse

assessment in April of 2017, but did not complete it until August

2017 and was a no-show for six out of eight drug tests between

January 27, 2017 and September 20, 2017. On October 10, 2017,

DHS received a call alleging Mother was using and dealing

methamphetamines. On October 11, 2017, DHS was informed Mother

was minimally compliant with Voluntary Case Management services

and Father did not participate at all. On October 27, 2017, a

DHS social worker met with Mother and Father in person and

questioned them about participating in services. Mother stated

that missed and rescheduled appointments were difficult to

attend; however, neither parent was employed at the time. Mother

denied using drugs and claimed she never used methamphetamine,

despite a prior positive test for methamphetamine. On November

9, 2017, a DHS social worker called Mother to follow up about

missed appointments for KD2 to be evaluated for Early

Intervention Services, but Mother responded that she was not

worried about her children's well-being or development. Mother

was informed her case was being elevated because she was not

participating in services and needed to exhibit more

responsibility for her children's well-being, but DHS did not

hear back from Mother. On December 8, 2017, two DHS social

workers made an unannounced visit to the family home and

observed, inter alia, that KD2, who was only two years old at the

time, was wandering around the yard strewn with trash and debris.

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KD1 and KD2 were then taken into protective custody; Mother was

arrested on an outstanding warrant. Thus, the record

demonstrates that Mother's argument is without merit.

(2) Mother contends that DHS failed to provide

reasonable efforts to prevent removal of the children on June 5,

2018, and to reunify the family.3 Mother appears to refer to

HRS § 587A-26(c)(2)(A) (2018) which requires the Family Court to

consider whether DHS "made reasonable efforts to prevent or

eliminate the need for removing the child from the child's family

home before the child was placed in foster care" to challenge

continued temporary foster custody after June 5, 2018.

In a Supplemental Safe Family Home Report, dated June

8, 2018, DHS explained its reasoning for removing KD1 and KD2

from family supervision and placing them into temporary foster

custody. DHS stated that on June 1, 2018, a caller informed DHS

that Mother was arrested "for dealing meth," a drug raid was

conducted at the family residence, Mother was in custody, and KD1

and KD2 were at home with Father. The caller also reported

Mother and Father fought daily and that the children were

"malnourished, as the parents are on meth." DHS deemed the

family home to no longer be safe and was unable to risk leaving

the children in the home due to Mother's arrest on drug charges,

the fact that neither parent notified DHS of Mother's arrest, and

3/
Only KD1 and KD2 were taken into temporary foster custody on June
5, 2018.

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that Father allowed Mother back into the family home after she

was placed on supervised release. DHS considered leaving the

children in the family home but concluded that the risk was

unacceptable because drugs were present in the home where both

parents resided, Mother had been arrested on drug charges related

to the home, neither parent informed DHS of the drug-related

charges, and both parents continued to reside in the family home

after Mother's arrest. DHS could not prevent or eliminate the

need to remove the children from the family home due to Mother's

and Father's conduct. Therefore, the Family Court did not err by

continuing temporary foster custody.

DHS did not fail to provide Mother with a reasonable

opportunity to reunify with the children. "DHS is under an

obligation to provide a reasonable opportunity to parents through

a service plan to reunify the family." In re Doe, 100 Hawai#i

335, 343, 60 P.3d 285, 293 (2002) (interpreting HRS Chapter 587,

the predecessor to HRS Chapter 587A). After the Family Court

adjudicated jurisdiction on March 13, 2018, Mother and Father

were ordered to follow an Interim Family Service Plan, and then

on August 28, 2018, Mother and Father were ordered to follow a

Family Service Plan, dated August 13, 2018. "[A] claim for

additional services and accommodations must be timely made." Id.

at 344, 60 P.3d at 294. Mother does not point to where in the

record she raised the issue of DHS's lack of reasonable efforts

to reunify her with the children or requested additional or

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different services, and we find nothing in the record to support

this argument. Therefore, we conclude that Mother's argument is

without merit.

(3) The record supports the conclusion that there was

clear and convincing evidence Mother was not presently willing

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

of a service plan. HRS § 587A-33(a)(1). As discussed, DHS

initially petitioned for temporary foster custody of the children

in December 2017 due to Mother using and/or dealing

methamphetamine, minimal compliance with Voluntary Case

Management services, and no-shows for drug testing. At the time

of trial on DHS's Motions to Terminate Parental Rights in

November 2020, Mother's remaining safety issue was drug use.

Mother's probation officer, Wendy Mitchell (Mitchell) testified

that although Mother completed outpatient treatment in May 2020,

Mother admitted to using methamphetamine on June 17, 2020.

Mother tested positive for methamphetamine on December 3 and 13,

2019, and January 21, February 26, June 17, and October 9, 2020.

A DHS social worker, Tina Haalilio (Haalilio) testified Mother

had three no shows for drug tests since June 2020, which are

considered positives. Mother's inability to parent while using

methamphetamine resulted in the children being neglected, not

being fed properly, appearing dirty and disheveled, and having

behavioral issues. In addition, even when Mother tested positive

she did not accept the result and made excuses why it could be a

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mistake. For nearly three years, Mother failed to address the

safety concerns stemming from her drug use. Therefore, we

conclude that the Family Court did not err by finding Mother

could not presently provide a safe family home, even with the

assistance of a service plan.

(4) There was clear and convincing evidence it was not

foreseeable Mother would become willing and able to provide a

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

within a reasonable period of time, not to exceed two years from

the date the children entered foster care. AW entered foster

care on February 6, 2018, and KD1 and KD2 entered foster care on

June 5, 2018. Among other things, Haalilio testified that due to

Mother's substance abuse safety issues, Mother would need an

additional six months from November of 2020 to be ready to create

a safe family home. Accordingly, it was not reasonably

foreseeable Mother would become willing and able to provide a

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

within a reasonable period of time, not to exceed two years from

the date the children entered foster care.

(5) Citing In re T.M., Mother disputes that "[t]he

Court has provided Mother and Father with adequate legal

representation." Mother claims she was not appointed counsel

prior to the initial hearing on the petition for temporary foster

custody of KD1 and KD2 in December 2017 as required by In re T.M.

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In In re T.M., 131 Hawai#i at 436, 319 P.3d at 355, the

Hawaii Supreme Court held: "We direct that upon the filing date

of this opinion, trial courts must appoint counsel for indigent

parents upon the granting of a petition to DHS for temporary

foster custody of their children." In In re L.I., 149 Hawai#i

118, 122, 482 P.3d 1079, 1083 (2021), the court clarified "that

In re T.M. mandated that family courts appoint counsel for

indigent parents when DHS files a petition asserting custody over

a child."

Here, in FC-S No, 17-0095K, the initial temporary

foster custody hearing on December 21, 2017, was continued and

was further continued on January 3, 2018, until after Mother

completed an application for court-appointed counsel and

established she was indigent and was granted court-appointed

counsel on January 4, 2018. Therefore, Mother's right to counsel

was not violated in FC-S No. 17-0095K.

In FC-S No. 17-0093K, on December 15, 2017, during the

initial temporary foster custody hearing, court minutes indicate

that Mother acknowledged she was given an application for court-

appointed counsel, and the Family Court offered to continue the

proceeding so counsel could be appointed. Mother admits that

"Mother declined the court's recommendation to continue the

matter at a further hearing in order for Mother to receive an

appointment of counsel." Court minutes of December 21, 2017,

indicate Mother was again advised that she had a right to counsel

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and to let the Family Court know at any time if she would like to

invoke that right all she needed to do was fill out an

application and if she qualified she would be appointed counsel.

Court minutes of January 3, 2018, indicate the Family Court

"would like to afford the parents an attorney before granting

[Temporary Foster Custody]." Court minutes of June 12, 2018,

indicate that Mother's court-appointed counsel in FC-S No. 17-

0095K stated Mother was not asking for counsel in FC-S No. 17-

0093K, but nevertheless wanted the children to be returned that

day and would contest foster care. Counsel stated she was only

appointed in FC-S No. 17-0095K, and Mother just told her "maybe

she should represent herself." The Family Court noted that

Mother and Father had the right to counsel and can fill out an

application and the matter would be continued, or they could go

forward without counsel; the court suggested they get counsel.

Although Mother did not state she wanted counsel, the Family

Court continued the matter to July 3, 2018. Court minutes of

July 3 2018, indicate that the Family Court again recommended

parents be represented by an attorney, Mother and Father stated

they would like to proceed without an attorney, the Family Court

then advised them their testimony could be used against them and

Mother had a pending criminal drug case, but Mother indicated she

would still like to go forward. Further into the hearing, the

Family Court again advised Mother she needed to consult with an

attorney and that if she wanted one and could not afford one that

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one would be appointed for her. Court minutes of August 14,

2018, indicate that Mother's counsel in FC-S No. 17-0095K stated

parents have chosen to be pro se in FC-S No. 17-0093K and the

Family Court again advised them of their right to be represented

by an attorney. Court minutes of October 23, 2018, indicate that

Mother asked her court-appointed attorney in FC-S No. 17-0095K to

withdraw. Court minutes of November 16, 2018, indicate Mother

did not object to the withdrawal of her counsel and that after

the Family Court advised Mother of her right to be represented by

an attorney, Mother indicated she did not want an attorney at

that time. The Family Court then advised Mother of her right to

an attorney in the future. On July 18, 2019, the Family Court

appointed counsel for Mother in both cases after she completed an

Application for Court-Appointed Counsel on July 18, 2019.

The record clearly demonstrates Mother was advised of

her right to counsel multiple times, the Family Court recommended

Mother obtain counsel multiple times, Mother did not request

counsel be appointed in FC-S No. 17-0093K, Mother refused to

continue hearings so counsel could be appointed, and the record

in FC-S No. 17-0093K did not demonstrate that Mother was indigent

until she completed an application for appointment of counsel,

after which she was immediately appointed counsel at her request.

We conclude that the Family Court did not fail to timely appoint

counsel for Mother in either case.

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(6) The Family Court did not err by finding the

permanent plan was in the best interest of the children. At a

termination of parental rights hearing, the court shall determine

whether there exists clear and convincing evidence that "[t]he

proposed permanent plan is in the best interests of the child."

HRS § 587A-33(a)(3) (2018). The permanent plan shall state

whether the permanency goal will be achieved through adoption,

legal guardianship, or permanent custody. HRS § 587A-32(a)(1)

(2018). In deciding if the proposed permanent plan is in the

best interest of the child, the Family Court must "[p]resume 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 must "[g]ive

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[.]" HRS § 587A-

33(a)(3)(A) and (B).

Here, the April 30, 2020 Permanency Plans for the

children recommended the permanency goal of adoption. Although

Mother makes several arguments in conjunction with this point of

error, none relate to whether adoption, legal guardianship, or

permanent custody is in the best interest of the children.

Mother does not point to any evidence in the record that would be

sufficient to rebut the presumption that it is in the best

interest of the children to be promptly and permanently placed

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with responsible and competent substitute parents and family in a

safe and secure home. We conclude that Mother's challenge to the

permanent plan is without merit.

(7) Mother contends that FOFs A, C2, G, G4, I, J, L,

Z, BB, DD, and EE, and COLs 1, 2, 5, and 6 are erroneous. As

discussed above, FOF A is not clearly erroneous because there was

clear and convincing evidence Mother was not presently willing

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

of a service plan, and it was not reasonably foreseeable Mother

would become willing and able to provide a safe family home, even

with the assistance of a service plan, within a reasonable period

of time.

FOFs C2 and G4 are clearly erroneous to the extent they

state that Mother failed to appear for a hearing on February 27,

2018. A February 27, 2018 Order Continuing Return Hearing for

All Three Children indicated that Mother was present for a

hearing on February 27, 2018. However, such error is harmless

because it does not appear that the Family Court based any order

or decision on the erroneous finding of fact. As discussed

above, Mother was provided with adequate legal representation,

therefore, FOF G is not otherwise clearly erroneous.

Mother provides no argument as to why FOF I and J are

erroneous. Therefore, those points of error are waived. See

HRAP Rule 28(b)(7).

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Mother objects to FOFs L and Z due to their

characterization that Mother's service plan required "inpatient"

substance abuse treatment. The record indicates Mother's service

plans required her to participate in any recommended treatment or

one approved by DHS and that two service providers recommended

Mother participate in residential treatment. However, there is

nothing in the record that equates residential treatment with

inpatient treatment. Therefore, it appears that, to the extent

FOFs L and Z state Mother was required to participate in

inpatient substance abuse treatment, they are erroneous.

However, any such error is harmless. Mother does not contend

that she completed a residential substance abuse treatment

program or that her completion of Access Capabilities was either

a recommended treatment or approved by DHS. Mother did not

complete the recommended substance abuse treatment as required by

her service plans. Moreover, Mother's substance abuse was

unresolved almost two and a half years after the children entered

foster care. Therefore, any error in FOFs L and Z did not affect

the Family Court's determination that Mother was not presently

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

assistance of a service plan.

Mother contends that FOF BB, which found the children

were doing well in their respective placements, is erroneous

because according to the record the children are not doing well

and "the reports have demonstrated the opposite of improved

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behaviors, at a consistent decline." AW's resource caregiver

testified that when AW first came to her she threw major tantrums

and lied a lot but since being with her it lessened and there

were no incidents in the past five months. AW's therapist

testified AW stopped using medication over the past few months,

AW seemed more in touch with her feelings now, AW was doing

better with issues of stealing and lying more recently, AW's

behavior recently improved and there was consistent change in her

behavior, and AW needed consistency and would not do well with

unstructured time. An Initial Mental Health Evaluation that

assessed KD2 on June 18, 2020, stated that KD2's resource

caregiver reported that KD2 "made drastic improvements in the

past two years that he lived with her," but he was still a

challenge. The Fourth Report of Guardian Ad Litem, dated

February 26, 2020, reported that KD1 was happy living with the

resource caregiver, felt safe, liked everything about living

there, did chores, loved school, was doing well in school, and

school staff had no concerns about KD1's attitude or behavior.

We conclude that the record supports FOF BB. Thus, it is not

clearly erroneous.

Mother contends that FOF DD, which found the proposed

permanency plan was in the best interest of the children, is

erroneous because the Family Court failed to find Mother was

unfit and the best interest standard does not apply. As stated

above, the Family Court must find by clear and convincing

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evidence "[t]he proposed permanent plan is in the best interests

of the child." HRS § 587A-33(a)(3). Therefore, the best

interest of the child standard applies. Contrary to Mother's

claim, the Family Court is not required to specifically find that

a parent is unfit when terminating parental rights. HRS § 587A-

33.

Mother contends FOF EE, which found DHS made reasonable

efforts to finalize the permanency plan, is erroneous because she

was not provided with the services needed for reunification. As

discussed above, Mother's claim regarding lack of a reasonable

effort to reunify is without merit.

Mother argues that COLs 1 and 2 are erroneous based

upon the same arguments in challenging FOF A. For the same

reasons as stated above, we conclude that COLs 1 and 2 are not

erroneous.

Mother argues that COL 5, which concluded it was in the

children's best interest to be promptly and permanently placed

with responsible and competent substitute parents and family in a

safe and secure home, is erroneous because the outcome of the

hearing would not change the children's placement, the children

need to be placed back home with their family, the Child

Protective Act, Social Security Act Title IV, and Adoption and

Safe Families Act all agree that the best interest of the child

is with parents when safe and appropriate, Mother is the only one

who should decide what is in the best interest of the children,

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the October 26, 2020 Proposed Permanent Plan is not in compliance

with the Child Protective Act because it does not have a

permanent placement for AW, and a DHS social worker reported

false information. The only cogent argument Mother makes in

support is that she, and not the Family Court, determines what is

in the best interest of the children, which is clearly contrary

to HRS § 587A-33(a)(3), which requires the Family Court to make

such a determination. Therefore, Mother's argument is without

merit.

Mother contends that COL 6, which concluded that the

proposed permanency plan was in the best interest of the

children, is erroneous because the Family Court was without clear

and convincing evidence that Mother was unable to provide a safe

family home. As discussed above, there was clear and convincing

evidence Mother was not presently willing and able to provide a

safe family home. Therefore, Mother's claim is without merit.

For these reasons, we affirm the Family Court's (1)

Order Granting Motion to Terminate Parental Rights, and Denying

Mother's Motion for Reunification filed on December 8, 2020, in

FC-S No. 17-0093K; and (2) Order Granting Motion to Terminate

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Parental Rights, and Denying Mother's Motion for Reunification

filed on December 8, 2020, in FC-S No. 17-0095K.

DATED: Honolulu, Hawai#i, February 23, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Sylvia Alicia Viera, Pro Se, Chief Judge
Mother-Appellant.
/s/ Katherine G. Leonard
Charles H. McCreary IV, Associate Judge
Patrick Pacual,
Julio Herrera, /s/ Sonja M.P. McCullen
Ian Tsuda, Associate Judge
Deputy Attorneys General,
for Petitioner-Appellee
Department of Human Services.

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