In re: NO

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-MAY-2022
08:00 AM
Dkt. 73 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF NO

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 18-00227)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Mother-Appellant (Mother) appeals from the Order

Terminating Parental Rights filed on August 26, 2021 (Termination

Order), in the Family Court of the First Circuit1 (Family Court),

which terminated Mother's parental rights to her pre-school-age

daughter, NO (NO or Child).2

In her Points of Error, Mother challenges Findings of

Fact (FOFs) 34, 73, 98, 100, 102, 103, 105, and 106 and

1/
The Honorable John C. Bryant, Jr. presided.
2/
The parental rights of NO's father (Father) were also terminated.
However, Father did not appeal that decision.
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Conclusions of Law (COLs) 9 and 10, contending that they were

made as an abuse of discretion. Mother argues that the record

lacks substantial evidence that (1) she is not willing and able

to provide NO a safe family home with the assistance of a service

plan, (2) it is not reasonably foreseeable that Mother would

become willing and able to do so within a reasonable time, and

(3) the permanent plan of adoption is in NO's best interests.

Mother asks the court to vacate the Termination Order and remand

the case to the Family Court for further proceedings.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

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

arguments as follows:

The challenged FOFs and COLs state:
[FOF] 34. The further trial on the DHS' MTPR
was held on August 26, 2021. Further testimony was
taken from the DHS social worker Maili Taele and
Mother. At the conclusion of the trial, the Court
granted the DHS' MTPR. Pursuant to HRS § 587A-33(a),
the Court found by clear and convincing evidence that:
(1) Mother and Father are not willing and able to
provide the Child with a safe family home, even with
the assistance of a service plan; (2) it is not
reasonably foreseeable that Mother or Father will
becoming willing and able to provide the Child with a
safe family home, even with the assistance of a
service plan, within a reasonable period of time; and
(3) the proposed Permanent Plan dated October 26,
2020, is in the best interests of the Child. The
Court terminated the parental rights of Mother and
Father; awarded permanent custody of the Child to DHS;
and ordered the Permanent Plan dated October 26, 2020.

. . . .

73. Mother completed parenting education
classes while residing at the Women's Way program;
however, Mother is unable to demonstrate and
effectively apply the skills learned.

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. . . .

98. Mother continues to minimize the severity
of her substance abuse issues. Mother believes that
she no longer suffers from substance abuse.

. . . .

100. Mother failed to complete any substance
abuse treatment, random urinalyses program, or
individual therapy, as ordered by the Court.

. . . .

102. Mother fails to understand how her
behaviors and poor decision-making pose a threat to
the Child's wellbeing.

103. Mother is not committed to meaningfully
engaging in services.

. . . .

105. Mother is not presently willing and able
to provide the Child with a safe family home, even
with the assistance of a service plan.

106. It is not reasonably foreseeable that
Mother will become willing and able to provide the
Child with 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
Child's date of entry into foster care.

. . . .

[COL] 9. The Child's legal mother, legal
father, adjudicated, presumed, or concerned natural
father, as defined under HRS Chapter 578A, are not
presently willing and able to provide the Child with a
safe family home, even with the assistance of a
service plan.

10. It is not reasonably foreseeable that the
Child's legal mother, legal father, adjudicated,
presumed, or concerned natural father, as defined
under HRS Chapter 578A, will become willing and able
to provide the Child with a safe family home, even
with the assistance of a service plan, within a
reasonable period of time.

FOF 34 merely recites the trial proceedings and comes

directly from the trial transcript.

Regarding FOF 73, Mother contends that she was unable

to demonstrate her parenting skills because NO was taken into

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temporary foster custody on September 24, 2019. This argument

lacks merit as Mother fails to show that she could not

demonstrate her parenting skills through supervised weekly visits

with NO, which were ordered in her service plans. See, e.g., In

re EG, No. CAAP-XX-XXXXXXX, 2018 WL 4204159, at *4 (Haw. App.

Sept. 4, 2018) (SDO) (observing that the father could have

demonstrated parenting skills through supervised visits).

Regarding FOF 98, Mother contends that she acknowledged

her insight into her substance abuse and demonstrated it by

attending Alcoholics Anonymous (AA) and Narcotics Anonymous (NA)

meetings and seeking treatment. Mother testified that her

alcohol dependency and substance abuse issues are lifelong

battles, she recognized her failure to make the changes necessary

to succeed, and she asked her friends to help her quit drinking

when it got "out of hand." However, Department of Human Services

(DHS) Social Worker Maili Taele (Taele) testified that Mother is

in denial and does not fully acknowledge the extent her substance

abuse affects her parenting ability. The Family Court found

Taele to be credible, and that her opinions and expert

assessments were based on facts provided by service providers and

DHS personnel, and that the facts used to form her opinions and

assessments were of a type reasonably relied upon by experts in

her field. "It is for the trial judge as fact-finder to assess

the credibility of witnesses and to resolve all questions of

fact[.]" State v. Kwong, 149 Hawai#i 106, 112, 482 P.3d 1067,

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1073 (2021) (internal citation omitted). Taele's testimony is

supported by, inter alia, evidence that Mother has an extensive

history of use of illegal substances and was unable to refrain

from using substances while she was pregnant, NO tested positive

for amphetamines at birth, and Mother took NO with her to abuse

substances more than once, including spending a weekend in a

hotel with Father, who had not addressed his own safety issues.

Mother failed to provide evidence of attending NA meetings, and

the only credible evidence she provided of attending AA meetings

was for the last three months of 2020.

Regarding FOF 100, Mother contends that she was near

completion of substance abuse services at the time of trial.

Even if true, this does not contradict FOF 100, which reflects

Mother's repeated failures to complete ordered services.

Regarding FOF 102, Mother contends that she testified

that she felt guilty and regretful about relapsing. However, the

Family Court found Mother not credible, and Taele credibly

testified that Mother does not fully acknowledge the extent her

substance abuse affects her parenting ability.

Regarding FOF 103, Mother contends that she was engaged

in substance abuse treatment and individual therapy at the time

of trial. However, despite the passage of nearly three years,

Mother had failed to complete any substance abuse treatment,

comply with the random urinalysis (UA) program, or complete

therapy.

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Accordingly, we conclude that the Family Court did not

clearly err with respect to FOFs 34, 73, 98, 100, 102, or 103.

Particularly with respect to FOFs 105 and 106, and COLs

9 and 10, Mother challenges the Family Court's decision to

terminate her parental rights. Mother contends that there is no

substantial evidence of unresolved substance abuse issues to find

that she was not presently willing and able to provide NO with a

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

Mother argues that there is insufficient evidence that her claim

of sobriety from alcohol was untrue, that her substance use posed

a risk of harm to NO, or that she used methamphetamine in the

last year. Mother further argues that a missed UA is not

definitive evidence of a lack of sobriety, she was candid about

her substance use, and though the evidence may create a

presumption of unresolved substance abuse, it is not corroborated

by credible testimony. Mother contends FOF 105 and COL 9 are

clearly erroneous because she secured an apartment and a job, and

she continues to work on her services.

A parent's history of substance abuse is a factor in

determining the safety of a family home. Hawaii Revised Statutes

(HRS) § 587A-7(a)(7) (2018). Regarding Mother's claims of

sobriety, the Family Court found her not credible, and we will

not disturb the Family Court's assessment of the credibility of

witnesses here. See Kwong, 149 Hawai#i at 112, 482 P.3d at

1073. Mother has not been candid about her substance use; she

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repeatedly tested positive for methamphetamine, admitted to

consuming alcoholic beverages while "on pass" from a residential

treatment program, and she repeatedly failed to participate in

random UA testing. Missed UA tests are considered to be

presumptively positive. In re JM, 150 Hawai#i 125, 129, 497 P.3d

140, 144 (App. 2021). The record reflects other incidents of

apparent intoxication. Taele credibly testified that Mother has

attempted residential treatment at six different centers and has

yet to complete one without relapsing. We reject Mother's

argument that the record lacks substantial evidence to conclude

that she has not resolved her substance abuse issues.

Mother further contends that the Family Court should

have given her more time to complete her services to demonstrate

her willingness and ability to provide a safe family home.

Specifically, she argues that Taele testified that she was

looking for Mother to complete a program and obtain a clinical

discharge, and the Family Court should have continued trial since

Mother was only four weeks away from completing her treatment

with Action with Aloha. Mother raises these arguments to

challenge FOF 106 and COL 10.

We reject Mother's argument that the Family Court

abused its discretion when it declined to give Mother more time

to complete ongoing substance abuse treatment in light of her

repeated failures to complete treatment without relapsing.

Additionally, NO had been in foster custody for nearly two years

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at the time of trial, and "[t]he two-year time limit [in HRS

§ 587A-33(a)(2)] is the maximum a parent is allowed within which

to demonstrate that the parent can provide a safe home, not the

minimum." See, e.g., In re GH, Nos. 29187, 29188, 2009 WL

1426786, at *2 (Haw. App. May 22, 2009) (SDO). In addition,

Mother had failed to complete other court-ordered services and

directives.

Finally, Mother contends that the termination of her

parental rights with a goal of adoption is not in the Child's

best interests because Mother stayed engaged with NO throughout

the case, DHS failed to provide in-person visits in May 2021, and

Mother and NO's relationship was developing.

However, Mother fails to point to any evidence that DHS

failed to provide in-person visits, as ordered. Though Taele

testified that Mother had no in-person visits in the months

preceding trial, this appears to be because Mother delayed in

providing proof of Covid vaccination, resulting in DHS being

unable to process the paperwork. Moreover, the Family Court

presumes it is in a child's best interests to be promptly and

permanently placed in a safe and secure home and give greater

weight to the presumption that the permanent plan is in the

child's best interest the younger they enter foster custody. HRS

§ 587A-33(a)(3)(A), (B). Thus, even if Mother stayed engaged

with the Child, their relationship developed, and she had in-

person visits in the months before trial, she nonetheless had not

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progressed in addressing her substance abuse issues, which was

necessary to demonstrate that she could provide a safe and secure

home within a reasonable period of time. NO had been in

temporary foster care for nearly two years at the time of trial,

and in that time, Mother failed to resolve the issues that

prompted removal of NO from Mother's care. Accordingly, we

conclude that Mother has failed to show that the Family Court

clearly erred in determining the Permanent Plan was in the

Child's best interest.

For these reasons, the Family Court's August 26, 2021

Termination Order is affirmed.

DATED: Honolulu, Hawai#i, May 6, 2022.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Kaupenaikaika F. Soon,
for Mother-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Asami M. Williams,
Julio C. Herrera, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
for Petitioner-Appellee
DEPARTMENT OF HUMAN SERVICES.

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