In Re: S.U.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2024
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 S.U.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 21-00093)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Hiraoka and Wadsworth, JJ.)

Appellant/Cross-Appellee Father (Father) appeals and
Appellee/Cross-Appellant Mother (Mother) (together, Parents)
cross-appeals from the Order Terminating Parental Rights (TPR
Order) and Letters of Permanent Custody, entered on March 24,
2023, in the Family Court of the First Circuit (Family Court).
The TPR Order terminated Father and Mother's respective parental
rights to S.U. (Child).1/
Father and Mother each contend that Petitioner-Appellee
Department of Human Services (DHS) failed to establish by clear
and convincing evidence that: (1) the respective Parent is not
willing and able to provide the Child with a safe family home and
will not be willing and able to do so in the reasonably
foreseeable future, even with the assistance of a service plan;
and (2) the permanent plan dated February 28, 2023 (Permanent

1/
The Honorable Jessi L.K. Hall presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Plan) is in the best interests of the Child. Father and Mother
also challenge certain aspects of the Family Court's May 15, 2023
Findings of Fact and Conclusions of Law (FOFs/COLs).
Specifically, Father contests FOFs 29-30, 34-35, 74-79, 83-85,
96-111, and 120-121, and COLs 16-17, and 21. Mother contests
FOFs 29-30, 34-36, 74-76, 81-87, 89, 91, 96-97, 99-100, and 121,
and COLs 16-19, and 21.
For the reasons discussed below, we affirm.

I. Background

The following background is drawn primarily from the
Family Court's uncontested FOFs, which are binding on appeal.
See In re Doe, 99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
The Child was born in May 2021 testing positive for
amphetamines. Police took the Child into protective custody on
May 24, 2021, and transferred custody to DHS, which placed the
Child in a DHS general licensed resource home upon discharge from
the hospital on May 26, 2021.
The FOFs further state:

17. On May 27, 2021, the DHS filed a Petition for
Temporary Foster Custody ("Petition") based on (1) Mother's
impairment due to substance abuse was negatively affecting
her ability to protect, supervise and care for the Child;
(2) Mother received minimal prenatal care; (3) Mother tested
positive for opiates, methadone and amphetamines, then left
[the hospital] against medical advice even though her baby
was breached; (4) the Child tested positive for amphetamines
at birth; (5) Mother admitted to using heroin daily and
methamphetamine, including use during her pregnancy with the
Child; (6) Father's history of substance abuse and refusal
to do a urinalysis test claiming it was against his
religion,2/ and then saying that he was uncomfortable taking
the test; and (7) Father's history of domestic violence with
his wife who had a court-ordered restraining order against
Father for two years.
18. On June 1, 2021, the initial Temporary Foster
Custody hearing on the Petition was held, and Parents were
present with their court-appointed counsels. . . . Mother

2/
Uncontested FOF 14 states:

Father refused to submit to a urinalysis claiming that
it was against his religion as he was a Muslim. On May 23,
2021, DHS contacted the Muslim Association of Hawaii and was
informed that although it was against Islam to use, buy or
sell drugs, alcohol or intoxicants; it is not against Islam
to take a drug test or any medical test.

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knowingly and voluntarily stipulated to the adjudication of
the Petition, the Court's [Hawaii Revised Statutes ( HRS)]
Chapter 587A subject matter jurisdiction, foster custody and
the family service plan dated May 27, 2021. . . . The Court
adjudicated the Petition, invoked the Court's subject matter
jurisdiction over the Child and Mother, awarded foster
custody of the Child to the DHS, and ordered the Family
Service Plan dated May 27, 2021, as modified, as to Mother.
19. At the June 29, 2021 return hearing, Parents
were present with their court-appointed counsels. Father
knowingly and voluntarily stipulated to the adjudication of
the Petition, the Court's HRS Chapter 587A subject matter
jurisdiction, foster custody and the family service plan
dated May 27, 2021 . . . . The Court adjudicated the
Petition, invoked the Court's subject matter jurisdiction
over Father, and ordered the Family Service Plan dated
May 27, 2021, as to Father.
. . . .

23. On January 3, 2022, the DHS filed its Motion to
Terminate Parental Rights ("MTPR").

24. At the March 10, 2022 periodic review hearing,
. . . [t]he Court scheduled a mediation and trial on the
MTPR [(TPR Trial)].
25. At the June 22, 2022 mediation, Parents were
present with their counsels, and the parties reached an
agreement to work to reunify the Child with Father . . . .
The Court set aside the TPR Trial and ordered Father to
submit to random urinalysis tests and a hair follicle test
within one week.

26. At the September 22, 2022 periodic review and
permanency hearing, Parents were present with their
counsels . . . . Mother's recent urinalysis tests were
positive. Father had been sporadic in his services and had
not done the hair follicle test stating that he did not have
enough hair. Father had not been participating in the
random urinalysis test as he felt uncomfortable doing it at
Hina Mauka. Over Father's objection, the Court ordered
Father to continue doing random urinalysis tests. DHS was
ordered to address Father's concerns with Hina Mauka. Due
to failing to complete a hair follicle test, Father was
again ordered to submit to a hair follicle test prior to the
next hearing on November 18, 2022.
27. At the periodic review and permanency hearing on
November 18, 2022, Parents were present with their
counsels . . . . The Court found that Parents had not made
progress toward resolving the problems that necessitated
placement. Father had allegedly taken a hair follicle test,
but refused to sign the necessary release for the
information to be provided to DHS. Father's failure to
comply with the court ordered hair follicle test led to a
finding that the hair follicle test was a presumptive
positive that could be rebutted with the receipt of the test
results. A TPR Trial was set and the Court ordered Parents
to appear for the TPR Trial on March 20[-]23, 2023 . . . ,
and for a pretrial conference on March 9, 2023 . . . .

28. On December 14, 2022, the Court filed an Order
Re-Setting Trial. The TPR Trial scheduled for March 20,

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2023 was set aside and the TPR trial was set on
March 22[-]24, 2023 . . . .

(Footnote added.)
At the March 9, 2023 pretrial conference, Parents were
present and represented by counsel. DHS informed the Court and
the parties that because DHS social worker Tracy Zhang (Zhang)
would be leaving DHS, DHS Section Administrator Puafisi Tupola
(Tupola), rather than Zhang, would be testifying on behalf of DHS
at the TPR Trial. Neither Father nor Mother's counsel objected
to Tupola testifying. DHS then asked the court to admit into
evidence State's Exhibits 97-134. Father and Mother (through
counsel) both indicated they had no objections, subject to cross-
examination, and the Family Court received the exhibits into
evidence. The court also denied Father's request to continue the
TPR Trial so that Father could re-do the hair follicle test, but
allowed Father to identify the person who performed Father's
earlier hair follicle test as a trial witness by March 15, 2023.
At the March 22, 2023 TPR Trial, Father and Mother were
defaulted for their failure to appear, but their respective
attorneys were present. Parents' attorneys' objected to Tupola
testifying on behalf of DHS. The court reminded counsel that
they had not objected at the pretrial conference when DHS stated
that Tupola would be testifying on behalf of DHS, and allowed
Tupola to testify over objection.
The Court proceeded with the TPR trial, hearing
testimony from Tupola and the guardian ad litem. Parents'
respective attorneys were provided the opportunity to and
conducted cross examination of the witnesses.
The Court orally announced its decision on March 22,
2023. The Court found by clear and convincing evidence that:

(1) Mother and Father are not presently 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 and Father 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; and (3) the proposed Permanent Plan . . . with the
goal of adoption, is in the best interest 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 . . . .

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The court subsequently entered the TPR Order and
Letters of Permanent Custody. This appeal and cross-appeal
followed.

II. Discussion

Father and Mother each contend that DHS failed to
establish by clear and convincing evidence, pursuant to HRS
§ 587A-33(a) (2018),3/ that: (1) the respective Parent is not
willing and able to provide the Child with a safe family home and
will not be willing and able to do so in the reasonably
foreseeable future, even with the assistance of a service plan;
and (2) the Permanent Plan is in the best interests of the Child.
More specifically, Father and Mother both contend that the Family
Court abused its discretion in allowing Tupola rather than Zhang
to testify during the TPR trial, where Zhang prepared DHS reports
about which Tupola testified. Father also separately argues that
at the March 9, 2023 pretrial conference, the Family Court abused
its discretion by denying his request for a continuance of trial.
As to Tupola's testimony, Father and Mother both rely
in part on HRS § 587A-18(d). The statute provides, in relevant
part:

(c) The department [of human services] or other
authorized agencies shall submit to the [family] court each

3/
HRS § 587A-33(a) provides, in relevant part:

(a) At a termination of parental rights hearing, the
court shall determine whether there exists clear and
convincing evidence that:
(1) A child's parent whose rights are subject to
termination is not presently willing and able to
provide the parent's child with a safe family
home, even with the assistance of a service
plan;
(2) It is not reasonably foreseeable that the
child's parent whose rights are subject to
termination 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, which shall not
exceed two years from the child's date of entry
into foster care;

(3) The proposed permanent plan is in the best
interests of the child.

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report, in its entirety, pertaining to the child or the
child's family that has been prepared by a child protective
services multidisciplinary team or consultant.

(d) A written report submitted pursuant to this
section shall be admissible and relied upon to the extent of
its probative value in any proceeding under this chapter,
subject to the right of any party to examine or
cross-examine the preparer of the report.

HRS § 587A-18 (2018). The statute gave Father and Mother the
right to examine or cross-examine Zhang, but it did not require
that DHS call Zhang as a witness in lieu of Tupola. See In re
EAC, No. CAAP-XX-XXXXXXX, 2023 WL 1462794, *3 (Haw. App. Feb. 2,
2023) (SDO); see also In re TC, No. CAAP-XX-XXXXXXX, 2021 WL
6054831, at *4 (Haw. App. Dec. 20, 2021) (SDO) (noting that
"admission of a report into evidence under HRS § 587A-18(d) is
not contingent upon actual cross examination of the preparer of
the report").
At the March 9, 2023 pretrial conference, "DHS informed
the Court and all parties that DHS Section Administrator . . .
Tupola[] would be testifying at the TPR Trial because the current
DHS social worker . . . Zhang would be leaving the DHS prior to
the TPR Trial. Neither attorney objected to . . . Tupola
testifying on behalf of . . . Zhang." FOF 30.4/ Additionally,
the record does not indicate that Mother or Father subpoenaed
Zhang or otherwise moved to compel her attendance to testify at
the TPR Trial. See In re Doe, 77 Hawai#i 109, 116, 883 P.2d 30,
37 (1994) ("[H]aving failed to file a motion to compel [DHS
social worker]'s testimony at trial, despite prior notice to
Mother by DHS that [DHS social worker] would not be called as a
witness, Mother effectively waived her right to cross examine
[DHS social worker]."). In these circumstances, the Family Court
did not abuse its discretion by not requiring testimony from a
witness who was not called, subpoenaed, or otherwise required to

4/
Both Mother and Father summarily challenge FOF 30, but neither
party disputes the quoted language; in any event, we conclude based on the
record that FOF 30 (in its entirety) is not clearly erroneous. In light of
DHS's explicit disclosure at the pretrial conference, we also reject Mother's
assertion that DHS's failure to include Tupola on its exhibit list violated
"Mother's right to notice and a fair trial."

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appear at the TPR trial.5/ See EAC, 2023 WL 1462794, at *3.
Father and Mother also appear to argue that Tupola's
testimony at the TPR trial was based on inadmissible hearsay,
inasmuch as Tupola relied on prior discussions with Zhang, as
well as DHS reports authored by Zhang. Tupola testified that she
worked for DHS as a section administrator and social worker.
The Family Court granted DHS's request to qualify Tupola as an
expert witness in the areas of child protective and welfare
services under HRS § 587A-19.6/ Tupola also testified that she
had personal knowledge of the case, she conferred with Zhang
during the life of the case and prior to Zhang's departure from
the department, she was familiar with the Child and his resource
caregivers, and she reviewed the DHS reports prepared in the case
prior to the TPR trial. As an expert, Tupola was entitled to
testify about her opinions on matters related to child protective
or welfare services, and she was entitled to rely on hearsay
regarding these matters as long as it was the type of information
reasonably relied upon by experts in her field. See Hawaii Rules
of Evidence Rules 702 and 703. Indeed, Tupola testified that her
testimony was based on the kind of information reasonably relied
upon by experts in the field of social work and child welfare.
On this record, we cannot say that the Family Court erred in
allowing Tupola to testify.7/

5/
For similar reasons, we conclude that Father's assertion — that
"DHS's failure to call Ms. Zhang as a witness . . . violates Father's due
process rights" — is without merit.
6/
HRS § 587A-19 (2018) provides:

A person employed by the department [of human
services] as a social worker in the area of child protective
services or child welfare services shall be presumed to be
qualified to testify as an expert on child protective or
child welfare services. Any party may move the court to
qualify a person employed by the department as a social
worker in the area of child protective services or child
welfare services called to testify as an expert on child
protective or child welfare services.
7/
For similar reasons, we reject Father's related arguments that
"the DHS reports" themselves were inadmissible hearsay and that Tupola's
testimony was not credible because it relied on hearsay. Written reports
submitted pursuant to HRS § 587A-18 were admissible under that statute. As to
credibility, Tupola testified that her testimony was based on the kind of
(continued...)

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We also reject Father's contention that the Family
Court abused its discretion by denying Father's request for a
continuance of trial. In FOFs 25-28, which Father does not
contest and which are therefore binding on appeal, the Family
Court found that: (1) at the June 22, 2022 mediation, the court
ordered Father to submit to a hair follicle test within one week;
(2) at the September 22, 2022 periodic review and permanency
hearing, Father had not done the hair follicle test and was again
ordered to submit to a hair follicle test prior to the next
hearing on November 18, 2022; (3) at the periodic review and
permanency hearing on November 18, 2022, Father had allegedly
taken a hair follicle test, but refused to sign the necessary
release for the information to be provided to DHS, leading to the
court's finding that the hair follicle test was a presumptive
positive that could be rebutted with the receipt of the test
results; and (4) the court set the TPR trial for March 22-24,
2023. At the March 9, 2023 pretrial conference, Father requested
a continuance of the trial based on the need to re-do the hair
follicle test, as he had not signed the release for the prior
test results, and Father would need more time to do a hair
follicle test because his identification had expired. The Family
Court gave Father multiple opportunities to submit to a hair
follicle test and disclose the results to DHS prior to the March
2023 trial, but he failed to do so. In these circumstances, the
trial court did not abuse its discretion by denying Father's
request for a continuance of trial.
Father and Mother make no other argument as to why the
FOFs and COLs they challenge are clearly erroneous. In any
event, based on our review of the record, we conclude that FOFs
29-30, 34-36, 74-79, 81-87, 89, 91, 96-111, and 120-121, as well
as COLs 16-19, and 21, which present mixed issues of fact and
law, are supported by substantial evidence and are not clearly
erroneous.

7/
(...continued)
information reasonably relied upon by experts in her field, and it was within
the province of the Family Court to determine Tupola's credibility.

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For the reasons discussed above, we affirm the Order
Terminating Parental Rights and Letters of Permanent Custody,
entered on March 24, 2023, in the Family Court of the First
Circuit.

DATED: Honolulu, Hawai#i, February 23, 2024.

On the briefs:
/s/ Katherine G. Leonard
Rebecca S. Lester Acting Chief Judge
for Father-Appellant/Cross-
Appellee
/s/ Keith K. Hiraoka
Crystal M. Asano Associate Judge
for Mother-Appellee/Cross-
Appellant
/s/ Clyde J. Wadsworth
Simeona A. Mariano and Associate Judge
Julio Cesar Herrera
Deputy Attorneys General
for Petitioner-Appellee

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