In Re Interest of Rw

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NO. 28991 ms
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IN THE INTERMEDIATE COURT OF APPEALS =
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OF THE STATE OF HAWAII
IN THE INTEREST OF RW or
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APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S No. 06-10820)

SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Mother-Appellant (Mother) appeals the Decision
Regarding Contested Permanent Plan Hearing and Order Awarding
Permanent Custody filed on January 7, 2008 by the Family Court of
the First Circuit (family court)* that terminated her parental
and custodial rights over her child, RW, and awarded Petitioner-

Appellee State of Hawai‘i Department of Human Services (DHS) with

permanent custody over RW.
I. Points on Appeal

On appeal, Mother raises the following points of error:
(1) insufficient clear and convincing evidence existed that
Mother is unable to provide a safe home within a reasonable
period of time, contesting Finding of Fact (FOF) 158; (2) DHS
failed to provide Mother a reasonable opportunity to reunify by
defying the court's order to return minor from Virginia,
contesting FOF 197; (3) evidence supports Mother's ability to be
protective, contesting FOFs 59, 116, 144, 145, 146, 148, 150, and
152-157; (4) DHS failed to provide Mother appropriate services to
reunify with RW, contesting FOF 199; and (5) DHS social workers

Leanna Lui (Lui) and Kathleen Reeber (Reeber) were not credible,

contesting FOFs 195 and 196.

+ The Honorable Matthew J. Viola presided.

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II. STANDARDS OF REVIEW.

Fisher v.

Family Court Decisions

Generally, the family court possesses wide discretion
in making its decisions and those decision[s] will not be
set aside unless there is a manifest abuse of discretion.
Thus, we will not disturb the family court's decisions on
appeal unless the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant and its decision clearly exceeded the
bounds of reason.

Fisher, 111 Hawai‘i 41, 46, 137 P.3d 355, 360 (2006)

(quoting In re Doe, 95 Hawai‘i 183, 189-90, 20 P.3d 616, 622-23

(2001)).

Family Court's Findings of Fact and Conclusions of Law (COL)

The family court's FOFs are reviewed on appeal under
the "clearly erroneous" standard. A FOF is clearly
erroneous when (1) the record lacks substantial evidence to
support the finding, or (2) despite substantial evidence in
support of the finding, the appellate court is nonetheless
left with a definite and firm conviction that a mistake has
been made. "Substantial evidence" is credible evidence
which is of sufficient quality and probative value to enable
a person of reasonable caution to support a conclusion.

On the other hand, the family court's COLs are
reviewed on appeal de novo, under the right/wrong standard.
COLs, consequently, are "not binding upon an appellate court
and are freely reviewable for their correctness. ["]

Moreover, the family court is given much leeway in its
examination of the reports concerning a child's care,
custody, and welfare, and its conclusions in this regard, if
supported by the record and not clearly erroneous, must
stand on appeal.

Credibility of Witnesses

It is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses
and the weight of evidence; this is the province of the
trier of fact.
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III. DISCUSSION.

A. Substantial evidence existed that Mother is unable
to provide a safe family home within a reasonable
period of time.

1. Mother demonstrated a lack of protectiveness.

Mother appears to assert that the following
demonstrated her protectiveness: her attempts to obtain a
divorce, her separation from father, expressed intent not to
reunite with Father, and necessary and limited contact with
Father. Mother also argues that Lui's action in providing
messages for Mother to pass to Father conflicted with the
position that the relationship with Father renders Mother non-
protective.

The record reflects that Mother was more concerned with
her relationship with Father than with RW's safety. Mother (1)
did not file for divorce; (2) permitted Father, who stated he
harmed RW, to be in the family home before RW was relocated to
Virginia; (3) allowed Father to reside with her subsequent to
RW's relocation; (4) was deceptive about her contacts with
Father; and (5) became pregnant again with Father's child. Where
no protective order was in place, where Lui was aware of the
regular contact Mother maintained with Father, and where Mother
expressed her willingness to provide messages to Father, Lui's
providing Mother information to relay to Father does not compel a
conclusion that such action justified Mother's contact with
Father. Thus, substantial evidence existed that Mother lacked
the ability to be protective, and although Mother argues that
contrary evidence existed, weight and credibility of the evidence
is "the province of the trier of fact." Fisher, 111 Hawai‘i at
46, 137 P.3d at 360.

2. Mother was afforded a reasonable opportunity to
reunify.

a. Perpetrator of harm.
Mother appears to assert that the following were

inappropriate, confusing, and reflected bias that precluded
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Mother's reasonable opportunity to reunify: (1) the DHS position
that both parents were perpetrators despite the court's position
that Father caused the injuries; (2) Reeber's statement that

. Mother "should have protected [RW]" and Lui's statement that a
perpetrator is also a non-protective person; and (3) Reeber's
statements that Mother should have demonstrated more concern for
RW, that parents would not get RW back, and that, without a
perpetrator, services would be a "shot in the dark."

(1) Although the family court adjudicated
the case based on Father's admission, the following evidence
existed that Mother could have perpetrated the first injury.

(a) The date of the first injury could not be established;
(b) Reeber's testimony reflected that they were informed by their
medical people that the injury could have occurred prior to
Mother's admission to the hospital; (c) Dr. Tamara Grigsby (Dr.
Grigsby), who was qualified as an expert in pediatrics and child
abuse and neglect, "did not believe that [Father's] story was
plausible" and "did not accept it as an explanation;"

(d) Dr. Brenda Wong (Dr. Wong), a stipulated expert in clinical
psychology and child abuse and neglect, noted that the Multi-
Discliplinary Team (MDT) did not assume that Father's explanation
of the bruises as the cause of that injury; (e) as to the second
injury, Father's explanation of an accidental fall with RW did
not appear to be consistent with the injury according to

Dr. Grigsby. Similarly, Dr. Wong testified that the MDT did not
identify who caused the fractures to RW.

Additionally, where an identified perpetrator is one
that DHS can identify based on the injuries and who is
responsible for the care of the child, and an admitted
perpetrator is one whose explanation is consistent with the
injury, and where neither parent could be eliminated as a
perpetrator, evidence that Father was not an identified or
admitted perpetrator was presented to the family court. Dr. Wong
testified that "without an identified or admitted

perpetrator . . . [w]e have to assume both are perpetrators."

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Social workers Lui and Reeber were qualified by
stipulation as experts in child welfare services, consistent with
Hawaii Revised Statutes (HRS) § 587-40(e) (2006).% In light of
the foregoing, Reeber and Lui had a basis for their positions
that Mother was also a perpetrator of the injuries, and Mother
has not demonstrated that those positions precluded Mother a
reasonable opportunity to reunify.

(2) Mother also has not shown that Lui's
testimony that a perpetrator is one who causes harm as well as
one who fails to protect a child from harm and Reeber's similar
testimony that Mother should have protected RW was confusing,
incorrect, or beyond the scope of their expert testimony.

(3) As to Reeber's statements, when RW
sustained the second injury, that Mother should have demonstrated
more concern for RW and that Mother would not get RW back, Reeber
explained that services had been provided to parents before RW
incurred severe injuries and that, after Mother was informed of
the extent of the rib injuries, she had no reaction and indicated
that DHS was "making a big mistake" and was "wrong." The family
court made the following finding that was not chailenged and thus
is binding:* "[u]nder the circumstances presented [in this]
case, DHS gave Mother and Father every reasonable opportunity to
succeed in remedying the problems which put [RW] at substantial
risk of being harmed in the family home and to reunify with
[RW]". From the foregoing, it appears that the family court did
not determine that Reeber's statements evidenced bias that
precluded reunification, and the family court's determination of
credibility cannot be disturbed. Fisher, 111 Hawai‘i at 46, 137
P.3d at 360.

2 HRS § 587-40(e) states: "A person employed by the department as a
social worker in the area of child protective or child welfare services is
. qualified to testify as an expert in the area of social work and child

protective or child welfare services."

3 In re Doe, 99 Hawai‘i 522, 538, 57 P.3d 447, 463 (2002).
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Mother takes issue with Reeber's testimony that giving
services would be a "shot in the dark[,]" because, without an
identified perpetrator, triggers of the abuse may be missed, and
abuse may recur. Reeber's testimony is consistent with
Dr. Wong's testimony that without an admission, services are
difficult because assumptions are made, about triggers of harm.
Where evidence existed, as discussed supra, that Mother was not
protective, Reeber's statement also is not contrary to Dr. Wong's
testimony that if there is an identified perpetrator who is not
admitting, the home can be made safe with services if "the

protective parent is able to . . . remain protective."

Hence, where the testimonies of Lui and Reeber were
supported by other evidence, where credibility is the province of
the family court, and where the family court found that DHS
provided Mother every opportunity to reunify with RW, Mother's
assertions of bias regarding the foregoing statements cannot be
sustained. Furthermore, with regard to services, where
subsequent services and assistance were provided to Mother as
part of the plans with the goal of reunification, as discussed in
further detail below, it does not appear that reunification
efforts were precluded.

b. Services.

Mother contends that (1) appropriate services were not
provided for reunification and the service plans were not fair,
appropriate and comprehensive; and (2) Lui's actions stopping of
hands-on parenting, subjective interpretations of Mother's
interactions with RW during visitation, and comments that
Mother's positive interactions during services with Enhanced
Healthy Start worker Torres (Torres) were "for show" reflected
bias. .

(1) The record reflects that a multitude of
services were provided. Following RW's first injury, services
included parenting education--in-home and out~of-home--and

marital counseling; parenting classes; once-a-week home-based
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support services including household safety, infant needs and
behaviors, development, infant cues, daily routine, and parent
coping skills; once-a~week in-home Enhanced Healthy Start
Services including parenting, attachment/parental cues and
developmental screens. Subsequent to RW's second injury, the
modified March 14, 2006 plan included individual therapy, couples
counseling, parenting instruction through the Family Advocacy
Program and through Enhanced Healthy Start upon RW's return, and
supervised visitation with RW. The September 27, 2006 modified
service plan included individual therapy, hands-on parenting, and
supervised visitation. After RW's relocation to Virginia, the
August 14, 2007 plan included individual counseling until
clinically discharged, parenting education, supervised webcam
visits, part-time voluntary work at a preschool or church day
care, and DHS appointments to write letters for RW. Mother's
arguments do not demonstrate that the services were inappropriate
for reunification or that the service plans were not fair,
appropriate and comprehensive. Hence, FOF 199 is not clearly
erroneous. It also appears that, through the services provided,
DHS made reasonable efforts at reunification, and that FOF 197 is
not clearly erroneous.

(2) Mother's assertion that Lui exhibited
bias by stopping hand-on parenting after RW's second injury
despite Dr. Wingert's recommendation, that Lui acted
inappropriately by her subjective negative interpretations of
visitations including RW "avoiding parents" contrary to Torres's
observation, and the statement that Mother's actions in
visitation observed by Torres was "for show" cannot be maintained
where Lui, a stipulated expert in social work and child
protective and welfare services, was qualified under
HRS § 587-40(e) to render her interpretations of RW's
interactions with Mother, where credibility is the province of

the family court, and where the family court determined in its
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unchallenged and thus binding finding* that DHS provided every
reasonable opportunity to reunify.
c. Family court's order to return RW to Hawai‘i.

Mother asserts that deliberate noncompliance with the
family court's order to return RW to Hawai'i denied her a
reasonable opportunity to reunify. At the conclusion of the
first permanent custody hearing, when the family court denied the
first motion for permanent custody, the family court was
"extremely reluctant" but could see no other option but to bring
RW back and ordered RW's return "in a reasonable timeframe
[sic], . . . taking into account that there needs to be
transition." Guardian Ad Litem (GAL) Pollard noted down 45-60
days, apparently believing that to be a reasonable period of
time.

Evidence reflects that DHS' motion for reconsideration
was timely received and deemed filed, pursuant to Rule 59(e) of
the Hawai‘i Family Court Rules and In re Doe, 101 Hawai‘i 220, 227
n.14, 65 P.3d 167, 174 n.14 (2003), within two weeks of the order
denying the first motion for permanent custody, arguing, inter
alia, that RW's relocation to Hawai‘i and potentially back to
Virginia would cause trauma. A hearing on the motion was set for
August 22, 2007.

While the motion for reconsideration was pending, Lui,
on August 12, 2007, went to Mother's home to collect medical
consents for the Multi-Disciplinary Team to speak to Mother's
therapist that Lui had been attempting to obtain from Mother
since July 27, 2007. Lui found evidence that Father was residing
in the home and later discovered that Mother was pregnant with
Father's child. Mother initially denied that Father was residing
with her, but later admitted that Father was residing with her
and admitted to Lui that he had been so residing since Father's
release from the brig on July 20, 2007 through August 31, 2007.

Mother became pregnant at the end of April or beginning of May,

4 In re Doe, 99 Hawai‘i at 538, 57 P.3d at 463.

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and first knew of the pregnancy on June 16, but did not disclose
this information to DHS or to the court by the conclusion of the
hearing on the first motion for permanent custody on July 19,
2007.

At the August 22, 2007 hearing on the motion for
reconsideration, the family court denied the motion for
reconsideration, but recognized that "DHS has not returned the
child to Hawaii based upon new information gained after the
7/19/07 trial." The family court denied without prejudice the
portion of the motion for reconsideration tantamount to a motion
to stay the order for RW's return.

Two days after the August 22, 2007 hearing, the motion
to stay the order that RW be returned to Hawai‘i was received and
thus deemed filed on August 24, 2007 and included information of
Mother's deception, pregnancy, and lack of bonding with and
interest in RW.

At a hearing on September 17, 2007, the family court
granted the motion to stay, finding good cause. Where a stay of
the order to return RW was ultimately granted in mid-September,
within the time frame the GAL apparently deemed reasonable to
allow for transition, and where Mother, for the period from RW's
relocation on December 9, 2006 to September 17, 2007, had not
initiated webcam visitations or correspondence with RW until it
was specified in the August 14, 2007 service plan or made
inquiries regarding RW, it does not appear that not returning RW
prior to September 17, 2007, the date of the stay order, denied
Mother a reasonable opportunity to reunify.

d. Credibility of the social workers.

Several of Mother's arguments about the credibility of
the social workers have been incorporated into the preceding
sections. The remaining arguments on credibility appear to be
(1) Reeber's statements that Mother should have known of the rib
and leg fractures based on being with RW "24/7" reflect
inappropriate actions contrary to reunification efforts, because

Dr. Grigsby testified that a non-offending parent would not

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necessarily have known of the leg and rib injuries, no service
workers detected injury or pain, and Mother only saw RW for about
an hour before RW went to daycare; and (2) Lui's use of the
pronoun "they" when purportedly asked about Mother, and also with
Lui'ts laughing during her testimony, presumably as bias that
precluded reunification efforts... As with Mother's other
contentions regarding credibility, judgments of weight and
credibility of testimony are left to the family court. Fisher,
111 Hawai'i at 46, 137 P.3d at 360.

Mother also disputes the finding that "the DHS expert
opinions are based on the kind of information reasonably relied
on by social workers and experts in the fields of social work and
child protective or welfare services." Where Reeber and Lui's
opinions were supported by information such as the MDT reports
and medical experts consistent with HRS 587-40(c) and (d)

(2006),° Mother's contention is without merit, and FOF 196 is not
clearly erroneous.

In summary, with respect to Mother's reasonable
opportunity to reunify, evidence established Mother's inability
to be protective, and FOFs 59, 116, 144, 145, 146, 148, 150, 152,
153, 154, 155, 156, 157 are not clearly erroneous. Appropriate

services were provided with a goal of reunification, and FOF 199

5 HRS § 587-40(c) and (d) (2006) state:

(c) A written report pertaining to cases pending before
the family court submitted by the department pursuant to
subsection (a) shall be submitted to the court in its entirety,
and shall include the following:

(1) Any report, or medical or mental health consultation,
generated by a child protective services
multidisciplinary team or consultant in its entirety;

and

(2) All other relevant information on placement of the
child.

(d) A written report submitted under this section shall be

admissible and may be relied upon to the extent of its probative
value in any proceeding under this chapter; provided that the
person or persons who prepared the report may be subject to direct
and cross-examination as to any matter in the report, unless the
person is unavailable.

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is not clearly erroneous. Mother was provided a reasonable
opportunity to reunify, and FOF 197 is not clearly erroneous.
The credibility of the social workers is the province of the
trier of fact, and where the family court made the foregoing
findings consistent with testimonies of Reeber and Lui, who were
qualified as experts in the field of social work and child
protective or child welfare services based upon information such
as the MDT reports and medical experts, FOFs 195 and 196 are not
clearly erroneous.

. 3. Bases for termination of Mother's parental rights.

Mother contends that insufficient clear and convincing
evidence exists of her inability to provide a safe home for RW
where she completed most of the services in the last service plan
of August 14, 2007 and where the divestment of her rights was
based only upon Lui's finding Father at Mother's home on the
Sunday visit.

Regarding completion of services of the August 14, 2007
service plan, although webcam visitation was approved prior to
the August 14, 2007 plan, on January 25, 2007, Mother failed to
take any action to commence webcam visits for almost eight
months, until required by the August 14, 2007 service plan.
Similarly, although written communication to RW, screened through
DHS, was authorized in January of 2007, and Mother was informed
to do so, Mother failed to follow through with those
communications until it was placed in the August 14, 2007 service
plan.

Mother admits that she did not complete individual
therapy, but argues that Dr. Wingert did not recommend
continuation of therapy. Mother contends that Lui'ts behavior was
inappropriate in disagreeing with Dr. Wingert's. not recommending
individual therapy and then asserting that Mother failed to
continue individual therapy with Dr. Bobbie Carlson
(Dr. Carlson). On September 11, 2007 and September 25, 2007, the
court ordered individual therapy with Dr. Carlson as part of the

August 14, 2007 service plan, and there is no indication of

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objection to individual therapy by Mother. Individual therapy
"until clinically discharged" was included in the August 14, 2007
plan, just as it was in all of the previously ordered plans:
March 14, 2006 modified plan; September 27, 2006 modified. No
evidence exists that Mother had been clinically discharged by

Dr. Carlson.

Mother also concedes that she did not complete
volunteer services that were part of the August 14, 2007 service
plan. The record confirms that although Mother stated she made
contact with programs but could not secure such work because of
liability issues, Mother never provided Lui with requested
contact persons.

Even if Mother had completed all the services, evidence
existed that participation in the service plan is not enough, and
that a person must have gained insight, understanding, and the
ability to apply concepts to daily living and to the child's
emotional needs, security, and stability. Mother has "not
demonstrated that RW is more important than" the relationship
with Father. "[Mother] demonstrates poor ability to be
protective by" placing "her relationship with [Father] above the
priority and safety resolutions for the benefit of [RW], being
deceitful" in "maintain[ing] a relationship with [Father]" and
"becoming pregnant once again by [Father];" "allowing [Father] to
resume residence with her immediately after the court hearing on
7/19/07;" and Mother's "demonstrated inability to emotionally
separate from [Father]." After the July 19, 2007 hearing, Mother
"did not initiate any inquiries about [RW], reunification,
services, or travel plans for return of [RW]" until "DHS wrote
the 8/14/07 and 8/23/07 reports to the court that outlined
developments of these concerns." Lui testified that, since the
first permanent custody hearing, Mother has not placed RW as a
priority over her needs or those of father and at no time from
the first permanent custody hearing to August 2007, did she
inquire as to services or the status of RW, and DHS always had to

initiate contact.

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Consequently, Mother's contention that she completed
most of the services in the August 14, 2007 service plan does not
establish her claim of insufficient evidence that she cannot
provide a safe family home.

In addition to Lui finding Father at Mother's house,
which Mother asserts is the sole basis for termination of her
parental rights, the family court's numerous findings included
Mother's weakness in parenting; lack of protectiveness that poses
a risk of harm to RW; lack of concern in inquiring about or
contacting RW; and dishonesty regarding her relationship with
Father and her pregnancy that culminated in the termination of
Mother's parental rights.

In consideration of the foregoing, substantial evidence
existed that Mother is unable to provide a safe home within a
reasonable period of time, and FOF 158 is not clearly erroneous.
IV. CONCLUSION.

Therefore, it is ordered that the January 7, 2008
Decision Regarding Contested Permanent Plan Hearing and Order
Awarding Permanent Custody issued by the Family Court of the
First Circuit is affirmed.

DATED: Honolulu, Hawai‘i, June 28, 2010.

On the briefs:

Herbert Y. Hamada, . Yi? i
for Mother-Appellant. .

Presiding Judge

Mary Anne Magnier and
Gay M. Tanaka,

Deputy Attorneys General
for Petitioner-Appellee.

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