In Re As-H.

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No. 29902 jYp fr
in ran :NTERMED:ATE c0URT or APPEALs

OF THE STATE OF HAWAI‘I

IN THE INTEREST OF’ A. S~H.

APPEAL FRoM THE FAM:LY coURT oF ran F:RsT c:RCU:T
<Fc~s No. 07~1i653>

SUMMARY DlSPOSITION ORDER
(By: Foley, Presiding J., Fujise, and Leonard, JJ.)

Father appeals from the Findings of Fact and
Conclusions of Law filed on July 28, 2009; the Order Awarding
Permanent Custody filed on June 29, 2009; the Amended Decision
Re: Trial (Amended Decision) filed on June 26, 2009; and the
Decision Re: Trial (Decision) filed on June 4, 2009 in the Family
Court of the First Circuit (family court).l The Decision and
Amended Decision granted the May 29, 2008 Motion for Order
Awarding Permanent Custody and Establishing a Permanent Plan for
A. S~H (A.S-H).

On appeal, Father contends:

(l) The failure of the Department of Human Services
(DHS) to obtain a restraining order against Mother's ex~husband
(Ex~Husband) was a violation of DHS's obligation to provide A.S-H
with a safe foster home and preserve A.S-H's placement with a
family member.

(2) Father's incarceration was an insufficient basis
for the termination of his parental rights. In connection with
this point of error, Father contends that the family court's
Findings of Fact (FOFs) 78 (Tarpley, a DHS social worker, was a
credible witness); 81 (the plan was in the best interest of A.S-
H.); and 82 and 83 (DHS has made reasonable efforts toward

reunification of A.S-H with Father) were erroneous.

l The Honorable Christine E. Kuriyama presided.

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{3} Father was denied due process when the family
court denied his request to examine A.S~H's therapist
(Therapist). in connection with this point of error, Father
contends the family court's FOFs T8 (Tarpley was a credible
witness) and 80 {DHS’s expert opinions were based on the kind of
information reasonably relied on by social workers and child
welfare and child protective services experts) were erroneous.

(4) Father also contends FOFs 1~11, 13~14, 16»17, 19-
2l, 25~32, 36~42, 44, 49, 52~53, 56-60, 62~66, 68~70, 73-77, and
79 were erroneous and Conclusions of Law {COLs) 1 through 12 were
wrong. However, Father fails to set forth any argument as to
these specific FOFs and COLs. "Points not argued may be deemed
waived." Hawafi Rules of Appellate Procedure Rule 28(b)(7).

Mother is the natural mother of A.S~H, and Father is
the natural and legal father of A.S-H. A.S~H. first came to the
attention of DHS in June 2002 when A.S¥H. tested positive for
methamphetamines soon after her birth. After completion of
services, DHS closed the case in December 2004. A.S~H. came to
the attention of DHS two more times before DHS filed a Petition
for Temporary Foster Custody (Petition) on December 27, 2007.
The Petition was based upon Mother‘s failure to provide care for
A.S~H. Mother had left A.S~H. with Ex~Husband, who then
contacted A.S-H.'s former foster parents to pick up A.S-H. DHS
took A.S~H into protective custody and attempted to contact
Mother to assess the safety of the family home. DHS was unable
to contact Mother and filed the Petition. At that time, Father's
probation had been revoked and he was incarcerated at a facility
in Arizona.

On February 25, 2009, Mother consented to the
termination of her parental rights to A.S-H.

Trial commenced on March 12, 2009. At trial, Tarpley
testified that she was a DHS social worker, was authorized to
testify on behalf of DHS, and represented the position of DHS.

lt was DHS's opinion that Father is not presently able nor in the

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reasonably foreseeable future will be willing to or able to
provide A.S~H with a safe family home even with the assistance of
a service plan. Even if Father were released immediately, he has
not addressed his substance abuse, and DHS has concerns about
Father’s parenting skills. Father had completed parenting
education class, but he has not had substance abuse assessment
and treatment, individual counseling, marriage counseling, and
intensive home-based services, and has been unable to seek
employment. DHS has not been able to assess whether or not
Father has benefitted from the services in which he has
participated. If Father were released on parole, it would take
him at least another six to nine months to complete services. A
further delay in permanent placement will made it increasingly
difficult for A.S~H to bond to a new family and adjust to new
circumstances.

Evidence was adduced at trial of an incident in which
Ex~Husband allegedly attempted to abduct A.S-H from her school.
Tarpley testified that she had looked into getting a restraining
order against Ex-Husband, but had not followed through with
filing for one. A.S-H's foster parents had opposed such a
proceeding because it would have required them to reveal personal
information to Ex~Husband.

Father testified that he thought he would have a parole
hearing in September 2009, but he did not know when he might be
released prior to the expiration of the full term of his sentence
in December 2011. By the time of trial, he had been incarcerated
for two years and five months.

On June 4, 2009, the family court issued its Decision,
granting the Motion for Permanent Custody.

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, as
well as the relevant statutory and case law, we resolve Father‘s

points of error as follows:

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ill Contrary to Father's first issue on appeal, the
evidence supports a conclusion that Tarpley did explore the
option of obtaining a restraining order against Ex~Husband, but

n. -H’s foster parents opposed that option.

Ul

Hawaii Revised Statntes {HRS} § 5S7~3{a}(l) {Supp.
2009§ provides that DHS "shall ensure that foster children: ill
Live in a safe and healthy home, free from physical,
psychological, sexual, and other abuse{.}" DHS appears to have
acted in the best interest of A.S~H and with the intention of
keeping A.S~H with the foster parents by (a} respecting the
desire of the foster parents not to seek a restraining order and
(b) stopping A.S~H's visits with Father, who DHS believed to be
the source of information to Ex~Husband regarding A.S-H‘s
whereabouts. These actions were consistent with the requirements
of HRS § 587-3(a)(l).

(2) As a general rule, Father is correct in arguing
that incarceration of a parent does not automatically result in
termination of parental rights. However, where the incarceration
exceeds two years from initial placement of the child in foster
custody, that general rule does not apply. In re T.H. & K.H.,
ll2 HaWari 33l, 336, l45 P.3d 874, 879 (App. 2006). Father was
incarcerated at the time the Petition was filed on December 27,
2007 and was still incarcerated at the time of trial. Father
testified that he did not expect to have a parole hearing until
September 2009. According to Tarpley, even if Father were
released in September 2009, it would take another six to nine
months for him to complete services. The additional six to nine
months would exceed the two years from A.S~H‘s first placement
into foster cuSt@ay. see sss § 537-73(a> (200e Rep1.>. saSed
upon the evidence that it was not reasonably foreseeable Father
would be able to provide a safe family home within two years from
the time A.S~H was first placed in foster custody, the family
court's decision to terminate Father's parental rights was not

clearly erroneous. FOFs 78, 8l, 82, and 83 were not erroneous.

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{3} Father raises, for the first time on appeal, the
arguments that his cross»examination of Therapist was for the
purpose of testing Tarpley‘s credibility and that visitation was
an issue at trial because Father's parental rights had not yet
been terminated. At trial, Father's counsel argued that Father
was entitled to examine Therapist on the issue of placement of
A.S~PU

with respect to [Therapist], §DHS] is making its
position that {A.S»H] is better off with non~family members

than with famil\ members artiall due to the concern that
f Y
{A.S~HE is divulging information or [Father} is divulging

information or something. It's a safety issue about {A.S~
H]. 1 didn't have any of that information about [Therapist}
until this morning’s testimony. l want the opportunity -- I

believe [Father] is entitled to the opportunity to cross~
examine both of these people {Therapist and John loans of
the Department of Public Safety] about that information.

when Tarpley confirmed the family court's understanding that the
testimony regarding Therapist related solely to visitation,
counsel for Father stated: "But that plays into [DHS's] decision
to place [A.S~H] with non~relative caretakers." Therefore, it
appears the only argument which counsel made was that the
examination of Therapist was necessary on the issue of child
placement with a non-family member and counsel did not raise in
the family court the issues of Tarpley's credibility or
visitation as the basis for compelling Therapist to testify.
Father waived the argument that he was entitled to
cross~examine Therapist to challenge Tarpley's credibility or to
address the issue of visitation. The appellate court is not
required to consider issues raised for the first time on appeal.
"The appellate court may correct any error appearing on the
record, but need not consider a point that was not presented in
the trial court in an appropriate manner." HRS § 641-2 (Supp.

2009); see also State v. Moses, 102 HawaiU_449, 456, 77 P.3d

940, 947 (2003) ("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").

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Rven if the issue had not been waived, Father‘s
inability to cross~cxamine Therapist on the issue of placement
with a non~family member and the credibility of Tarpley was
harmless beyond a reasonable doubt. Father has not shown how
Therapist’s testimony would have altered the undisputed facts
that Father would not be considered for parole until September
2009, Father had not completed a majority of the services
required for reunification, and Father could not provide A.S~H.
with housing or meet her educational and financial needs. ln
light of the overwhelming evidence supporting the family court's
decision regarding the termination of Father's parental rights,
the absence of Therapist's testimony does not appear to have
affected a substantial right of Father and therefore must be
disregarded. §ee Hawafi Family Court Rules Rule 6l; see also §§
r§”QQ§, lOO HaWaiU.335, 343, 60 P.3d 285, 293 (2002). FOFs 78
and 80 were not erroneous.

Therefore,

lT ls HEREBY ORDERED that the Findings of Fact and
Conclusions of Law filed on July 28, 2009; the Order Awarding
Permanent Custody filed on June 29, 2009; the Amended Decision
Re: Trial filed on June 26, 2009; and the Decision Re: Trial
filed on June 4, 2009 in the Family Court of the First Circuit
are affirmed.

DATED: Honolulu, Hawafi, January 28, 20l0.

On the briefs:

Thomas A. K. Haia ZgL©é}¢2B:?
for Father. Presiding Judge
Michael G. K. wong and z y
Mary Anne Magnier,

Deputy Attorneys General, Associate Jud;§-

for Department of Human »@…g g
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Services.
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