In re: JM and AM

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAR-2023
08:25 AM
Dkt. 123 SO

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

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

CAAP-XX-XXXXXXX
IN THE INTEREST OF JM
(FC-S NO. 17-00020)

AND

CAAP-XX-XXXXXXX
IN THE INTEREST OF AM
(FC-S NO. 17-00023)

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT

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

In these consolidated appeals, Respondent-Appellant

(Mother) appeals from two orders terminating parental rights

entered by the Family Court of the Fifth Circuit, 1 which together

terminated Mother's parental rights as to JM and AM (Children). 2

1 The Honorable Edmund D. Acoba presided.

2 Mother is the natural and legal mother of Children. Children's
father (Father) did not appeal the TPR Orders.
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Specifically, Mother appeals from: (1) the January 3, 2022

order terminating parental rights as to JM, entered in FC-S

No. 17-00020, which created the appeal in CAAP-XX-XXXXXXX; and

(2) the January 3, 2022 order terminating parental rights as to

AM, entered in FC-S No. 17-00023, which created the appeal in

CAAP-XX-XXXXXXX (collectively, TPR Orders). On January 3, 2022,

the family court entered the same findings of fact and

conclusions of law (FOF/COL) in each proceeding.

On appeal, Mother first challenges FOF 6 under the

"Historical Background-Procedural History" section (Historical),

FOF 22 under the "Concurrent Planning-Order to Show Cause

Hearing" section (Concurrent Planning), and FOF 9, 20, and 21 of

the "Termination of Parental Rights Hearing" section (TPR) of

the FOF/COL. (Formatting altered.) Mother then contends that

the family court abused its discretion by finding that

Petitioner-Appellee Department of Human Services (DHS) made

reasonable efforts to reunify Mother with Children, Mother was

unable to provide Children with a safe family home with the

assistance of a service plan, and the proposed permanent plan

was in Children's best interests.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and arguments advanced, we resolve Mother's

points of error as discussed below, and affirm.

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I. Background

On August 8 and September 29, 2017, DHS filed

petitions for temporary foster custody of Children based on

Mother's inability to provide Children with adequate food,

clothing, supervision, psychological, 3 physical, or medical care.

JM was two years old and AM was one month old when they entered

foster custody on October 5, 2017.

To regain custody of Children, Mother agreed to

complete substance abuse treatment, parenting education, and

individual counseling. Mother greatly progressed on the

services, and DHS reunified Mother and Children under family

supervision on December 24, 2018.

On August 8, 2019, DHS again removed Children from

Mother due to unsanitary living conditions, lack of

participation in services, failure to provide Children adequate

food and water, concerns of drug use, incidents of domestic

violence between Mother and her boyfriend (Boyfriend), including

one in which Boyfriend struck JM, and failure to supervise

Children, including an incident of Children wandering away from

Mother's home without her knowledge. DHS placed Children with

paternal grandmother. On August 21, 2019, the family court re-

awarded foster custody of Children to DHS.

3 DHS' petition regarding AM notes "Mother has not provided her child
with . . . psychological . . . care." However, DHS' petition regarding JM
does not note a failure to provide psychological care.

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On February 6, 2020, DHS filed, among other things, an

initial permanent plan (Permanent Plan 1), which contemplated

termination of parental rights and permanent placement of

Children with paternal grandmother. On March 6, 2020, the

family court set the matters for a termination of parental

rights hearing, but granted Mother multiple continuances.

During this time, DHS provided Mother with parenting

education and individual counseling services. DHS also

organized supervised visitation between Mother and Children, and

filed periodic safe family home reports, which, among other

things, documented an allegation of sexual abuse by Boyfriend

against JM.

On July 15, 2021, DHS filed an updated permanent plan

reflecting Children's removal from paternal grandmother's home,

placement with resource caregivers (RCGs), and anticipated

permanent placement of Children with RCGs (Permanent Plan 2).

Additionally, DHS filed an updated service plan for Mother,

which listed individual counseling as the sole remaining service

for Mother to complete, but noted that Mother was discharged

from counseling on June 3, 2021.

On July 15, August 26, October 7, and November 7,

2021, the family court held a single termination of parental

rights trial for both proceedings. DHS case manager Lisa Cook

(Cook) testified, in relevant part, that Mother completed

services, however based on her observations, Mother remained
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unable to redirect Children's behavior away from dangerous

activities such as running away and hitting, and opined that

Mother could not supervise and protect Children without the

intervention of other parties. Cook also testified that Mother

had been in and out of services for about four years, but was

unable to demonstrate that she could implement skills taught at

services.

Mother's therapist, Orie Lutwin (Lutwin) testified in

relevant part, that Mother completed counseling, reported no

domestic violence by Boyfriend, and mentioned an allegation of

sexual abuse by Boyfriend against JM, however they did not cover

the topic of sexual abuse during therapy. With respect to

domestic violence, Lutwin testified that they covered the topic

of "power and control dynamic in a relationship."

Parent educator Shenella Asuncion (Asuncion) testified

in relevant part, that she taught Mother parenting classes,

which Mother completed, and did one-on-one parenting support

with Mother. Asuncion also testified that Mother told her

domestic violence was not an issue, and based on her

interactions with Mother, Asuncion was under the impression that

Mother was not in a romantic relationship. Asuncion stated she

did not address protecting Children from sexual abuse with

Mother.

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Mother testified in relevant part, that there was no

domestic violence in her relationship with Boyfriend, she did

not discuss domestic violence with Lutwin because she felt it

was a "done issue," and she did not bring up domestic violence

incidents with Asuncion. Mother did not testify regarding

allegations of sexual abuse by Boyfriend against JM.

After considering the evidence and arguments

presented, the family court terminated Mother's and Father's

parental rights.

II. Standards of Review

"Generally, the family court possesses wide discretion

in making its decisions and those decisions will not be set

aside unless there is a manifest abuse of discretion." In re

Doe, 95 Hawai‘i 183, 189, 20 P.3d 616, 622 (2001) (internal

quotation marks omitted) (quoting In re Doe, 84 Hawai‘i 41, 46,

928 P.2d 883, 888 (1996)).

We review the family court's FOF for clear error. In

re Doe, 95 Hawai‘i at 190, 20 P.3d at 623.

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."

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Id. (citations and ellipsis omitted). Unchallenged findings of

fact are binding on appeal. In re Doe, 99 Hawai‘i 522, 538, 57

P.3d 447, 463 (2002).

III. Discussion

(1) In her first point of error, Mother claims that

Historical FOF 6, Concurrent Planning FOF 22, and TPR FOF 9, 20,

and 21 are clearly erroneous. We address each in turn.

Mother argues that Historical FOF 6 is clearly

erroneous because "[t]o the extent an issue exists as to whether

Mother is able to adequately supervise her Children and protect

them from dangerous situations, it exists because Mother was not

afforded an opportunity by the DHS to resolve it." Historical

FOF 6 states:

6. The Court finds that the issue is whether mother is
able to adequately supervise her children and to
recognize and protect them from dangerous situations,
including future harm or threat of harm.

As a threshold matter, Mother's argument fails to

demonstrate that Historical FOF 6 is clearly erroneous because

she purports to explain the reason for the factual finding,

rather than demonstrate it is in error.

In any event, Historical FOF 6 is supported by

Historical FOF 7-9 and TPR FOF 13, 4 which corroborate DHS'

4 Historical FOF 7-9 state:
7. The Court finds the GAL in her report filed July 14,
2021 noted concerns about mother's ability to supervise
the children.
(continued . . .)

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concerns about Mother's ability to supervise and protect

Children. Additionally, the record reflects that DHS raised

inadequate supervision and protection of Children as initial

safety concerns, re-emergence of these safety concerns caused

DHS to remove Children again on August 8, 2019, and these safety

concerns remained unresolved throughout the remaining

proceedings. Thus, substantial evidence supports Historical FOF

6, and we are not left with a definite and firm conviction that

a mistake has been made.

Mother argues that Concurrent Planning FOF 22 is

clearly erroneous because Mother made significant progress on

her service plan prior to March 29, 2018. Concurrent Planning

FOF 22 states:

22. At the review hearing on March 29, 2018, Parents had
made little progress and the matter was scheduled for
Order to Show Cause Hearing on June 7, 2018, to
determine whether the matter should be set for
termination of parental rights. (Order Continuing
Foster Custody of [JM] filed on April 12, 2018).

(. . . continued)

8. The Court further finds that the DHS warned mother to
not allow [Boyfriend] to have access to the children
because of [JM]'s allegation [Boyfriend] sexually abused
her.

9. The Court finds that despite DHS' warnings to mother,
mother added [Boyfriend] to her residential lease as a
co-tenant.

TPR FOF 13 states: "On August 26, 2021, Ms. Cook testified that she spoke to
[Mother] about [Boyfriend] sexually abusing [JM], and the very next day,
[Boyfriend] was added as a co-tenant to Mother's residential lease."

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The record reflects that, on March 29, 2018, the

family court recognized Mother made some progress on the service

plan, but declined to find that she made sufficient progress on

the service plan given Children's young age, and scheduled an

order to show cause hearing. Thus, the record contains

substantial evidence to support the "little progress" finding in

Concurrent Planning FOF 22, and we are not left with a definite

and firm conviction that a mistake has been made.

Mother argues TPR FOF 9 is clearly erroneous because

DHS did not provide Mother the opportunity to "show that she had

achieved the ability to react quickly to the needs of her

Children." TPR FOF 9 states:

9. Despite individual counseling being ordered in the
Family Service Plan, [Mother] never achieved the
ability to react quickly to the needs of her children,
and therefore visits continue to be supervised four
years later because Mother's ability to supervise the
children is an ongoing safety issue.

Mother, however, fails to demonstrate that TPR FOF 9

is clearly erroneous. At best, Mother purports to explain the

reason for the factual finding, rather than demonstrate it is in

error. In any event, substantial evidence supports TPR FOF 9,

and we are not left with a definite and firm conviction that a

mistake has been made. Therefore, TPR FOF 9 is not clearly

erroneous.

Mother argues that TPR FOF 20 is clearly erroneous

because some visitation observation notes show that Children

listen to her directions. Additionally, Mother argues that the
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quoted language in TPR FOF 20 does not show that she is unable

to manage Children. TPR FOF 20 states:

20. After three years of supervised visitation, parent
education, hands on coaching during the visits, and
individual counseling, the children continue to run
away from Mother, and do not follow her instructions,
"When [JM] was on the playground [JM] jumped from the
top of the slide down to the ground while mom stood
watching the girls play. Then [JM] climbed once again
to the top of the slide and the worker told [JM] to
get down because it's dangerous. [JM] listened to the
worker."

Mother correctly asserts that some visitation notes

reflect Children listening to Mother's instructions.

Additionally, Mother correctly asserts that the quoted language

in TPR FOF 20 does not support a finding that Children do not

follow Mother's instructions. This being said, the record

confirms that Children running away from Mother remained a

recurring safety issue. Even if TPR FOF 20 is clearly erroneous

in part, the error is harmless because it does not undermine the

reason upon which the family court terminated Mother's parental

rights, namely Mother's inability to adequately supervise and

protect Children, which is supported by the record. See

discussion of Historical FOF 6 supra at 7-8. As such, to the

extent TPR FOF 20 is erroneous, it does not provide a ground to

vacate the TPR Orders. Hawai‘i Family Court Rules (HFCR) Rule 61

("No . . . error or defect in any . . . order or in anything

done or omitted by the court . . . is ground for . . . vacating,

modifying, or otherwise disturbing a judgment or order, unless

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refusal to take such action appears to the court inconsistent

with substantial justice").

Mother argues TPR FOF 21 is clearly erroneous because

she completed individual counseling. TPR FOF 21 states:

21. Individual Counseling was ordered for Mother in the
Order Continuing Foster Custody, dated July 15, 2021,
it is the remaining and outstanding Service Plan item
for Mother.

The record reflects that Lutwin discharged Mother from

counseling on June 3, 2021. Additionally, Cook testified that

Mother completed services. As such, the record lacks

substantial evidence to support TPR FOF 21 and it is thus

clearly erroneous. This error, however, is harmless because the

family court recognized that Mother substantially complied with

the service plan, but nonetheless concluded based on the court's

findings that Mother was unable to provide Children with a safe

family home. As such, TPR FOF 21 does not provide a ground to

vacate the TPR Orders. HFCR Rule 61.

(2) In her second point of error, Mother claims the

family court abused its discretion by finding that "DHS made

reasonable efforts to finalize the initial permanency plan,

which was reunification." Mother identifies the July 20, 2021

orders continuing DHS foster custody over Children (Foster

Custody Orders) as the source of this point of error, and cites

to HFCR Rule 46 as the basis for her ability to appeal the

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Foster Custody Orders. 5 Mother argues that, after DHS re-assumed

foster custody of Children, DHS failed to offer her domestic

violence and sexual abuse services, and failed to provide her

opportunities to apply skills learned from services, therefore

DHS failed to provide reasonable reunification efforts.

As an initial matter, HFCR Rule 46 is inapplicable

because Mother had the opportunity to object to the family

court's "reasonable efforts" findings at the July 15, 2021

hearing or by appealing from the Foster Custody Orders, but

failed to do so. In re Doe, 77 Hawai‘i 109, 114-15, 883 P.2d 30,

35-36 (1994) (allowing immediate appeal of family court

decisions that impact custody over a child); Rules Expediting

Child Protective Appeals Rule 3 (setting forth a fifteen-day

deadline to appeal appealable orders, or allowing appeal within

thirty-days with a showing of good cause as per appellate

rules).

In any event, the record in this case reflects that

DHS provided Mother reasonable opportunities to reunify with

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HFCR Rule 46 provides:
Formal exceptions to rulings or orders of court are
unnecessary; but for all purposes for which an exception
has heretofore been necessary it is sufficient that a
party, at the time the ruling or order of the court is made
or sought, makes known to the court the action that the
party desires the court to take or the party's objection to
the action of the court and grounds therefor; and, if a
party has no opportunity to object to a ruling or order at
the time it is made, the absence of an objection does not
thereafter prejudice the party.
(Emphasis added.)

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Children. The record also indicates Mother was unable to

demonstrate that she could apply what she learned from the

services provided and declined to discuss domestic violence with

Lutwin and Asuncion. Based on this record, we cannot say that

the Family Court abused its discretion.

(3) In her third point of error, Mother claims the

family court abused its discretion by finding that Mother was

unable to provide Children a safe family home. Mother

identifies Historical FOF 1 and 2 6 and the TPR Orders as the

basis for this point of error. Mother argues Historical FOF 1

and 2 are clearly erroneous because DHS failed to provide her

the opportunity to demonstrate her ability to provide a safe

family home.

Mother purports to explain the reason for the factual

findings, rather than demonstrate they are in error. The record

reflects that DHS provided Mother with reasonable opportunities

6 Historical FOF 1 and 2 state:
1. Having considered the testimony presented, the records
and files herein, and the written closing arguments
submitted by Mr. Goo, Mrs. Meyers, and Mr. Morimoto this
Court finds by clear and convincing evidence that
mother, . . . , and father, . . . , are not willing and
able to provide a safe family home for their two
children, . . . , even with the assistance of a service
plan.

2. This Court further finds by clear and convincing
evidence that it is not reasonably foreseeable that the
parents will become willing and able to provide the
children with a safe home, even with the assistance of a
service plan within a reasonable period of time.

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to reunify with Children. Therefore, we cannot say that the

court abused its discretion in regards to this point.

(4) Finally, in her fourth point of error, Mother

claims the family court abused its discretion by finding that

Permanent Plan 2 was in Children's best interests. Mother

argues that Permanent Plan 2 falsely states that DHS "continued

to provide a service plan and referrals as needed[,]" and the

safety issues DHS identified in 2017 remained unresolved.

Additionally, Mother alleges DHS failed to consider placing

Children with her parents.

Here, evidence of services, safety issues, and

placement with maternal grandparents were before the family

court. In 2017, JM was two years old and AM was one month old

when they entered foster custody. Due to Mother's progression

with services, DHS reunified Mother and Children under family

supervision in 2018. But, in 2019, DHS removed Children because

of unsanitary living conditions, failure to provide Children

adequate food and water, failure to supervise Children

(including an incident of Children wandering away from Mother's

home without her knowledge), incidents of domestic violence

between Mother and Boyfriend (including one in which Boyfriend

struck JM), concerns of drug use, and lack of participation in

services.

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The January 9, 2020 safe family home report stated

among other things:

[Mother] is believed to be sober. She completed one urine
test just after the children were removed in August. The
UA was negative for all substances. The DHS concerns were
that [Mother's] behaviors regarding the children may have
been related to her having relapsed but it appears this is
not the case. Her inability to follow through with
scheduling medical appointments, cleaning the house to the
point where it was at least sanitary, and her relationship
with a violent partner were decisions she made while sober.
The children were often unsupervised in the neighborhood
while [Mother] was sober.

The report also noted Boyfriend transported Mother to and from

supervised visits with Children and remained in his car during

the visits, Mother's visits were often shorter than the time

allowed, Mother was late for visits with Children, and JM

reported being sexually abused by Boyfriend. DHS warned Mother

not to allow Boyfriend to have access to JM due to allegations

of sexual abuse, but Mother added Boyfriend to her residential

lease as a co-tenant.

Moreover, when JM was residing with maternal

grandparents pursuant to a safety plan, Mother violated the

safety plan by resuming care of JM. And after AM was born,

police officers "stated they did not feel the Maternal

Grandparent's home would be a suitable environment for an

infant[,]" as police "frequently responded to incidents at this

home."

Based on the record in this case, we cannot say the

family court was clearly erroneous in concluding that the

"proposed permanent plan of termination of parental rights and
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the goal for children [to be] placed for adoption is in the best

interest of the children."

IV. Conclusion

For the reasons discussed above, we affirm the family

court's (1) January 3, 2022 order terminating parental rights as

to JM, entered in FC-S No. 17-00020, and (2) January 3, 2022

order terminating parental rights as to AM, entered in FC-S

No. 17-00023.

DATED: Honolulu, Hawai‘i, March 31, 2023

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Casey M. Hutnick,
for Mother-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Russell K. Goo,
Patrick A. Pascual, /s/ Derrick H.M. Chan
Regina Anne M. Shimada, and Associate Judge
Julio C. Herrera,
Deputy Attorneys General,
for Petitioner-Appellee.

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