In re: J.H.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2022
07:57 AM
Dkt. 124 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF J.H.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 18-00251)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)

Appellant Father (Father) and Cross-Appellant Mother

(Mother) appeal from the Order Terminating Parental Rights filed

on April 28, 2021, in the Family Court of the First Circuit

(Family Court).1 Father's and Mother's parental rights to their

child (J.H.) were terminated.

On appeal, Father challenges Findings of Fact (FOFs) 9,

29, 38, 46, 49, 69, 135, 141, 151-54, 164-65, and 177. Father

contends that Petitioner-Appellee the State of Hawai#i,

Department of Human Services (DHS), failed to provide him with a

reasonable opportunity to reunify by denying any form of

visitation with J.H., the Family Court violated his due process

rights by denying his request to delay the termination of

1/
The Honorable Andrew T. Park presided.
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parental rights proceeding until after his trial on alleged

sexual abuse of his minor step-daughter (SA) was concluded, and

his due process rights were violated when his court appointed

attorney was discharged for a period of time during the

proceeding.

On cross appeal, Mother challenges FOFs 149 and 164 and

Conclusions of Law (COLS) 16 and 17. Mother contends that there

was not clear and convincing evidence that she was not presently

willing and able to provide a safe family home or that it was

reasonably foreseeable she would become willing and able to

provide 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 date J.H. entered foster care, DHS failed to provide a

reasonable effort to provide a service plan when it failed to re-

refer her for a psychological evaluation, and the Family Court

violated her due process right by denying her motion for a

continuance due to her hospitalization.

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, we

resolve Father's and Mother's points of error as follows:

"DHS is under an obligation to provide a reasonable

opportunity to parents through a service plan to reunify the

family." In re Doe, 100 Hawai#i 335, 343, 60 P.3d 285, 293

(2002) (interpreting Hawaii Revised Statutes (HRS) Chapter 587,

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the predecessor to HRS Chapter 587A). The Family Service Plan

stated that Father would not be permitted to have visitation with

J.H. until it was deemed appropriate and approved by Father's sex

offender treatment therapist and in consultation with the

Guardian Ad Litem (GAL). Father does not contest that he refused

to participate in any of the services in the Family Service Plan,

including sex offender treatment. Thus, Father did not have a

sex offender treatment therapist approve visitation. At no time

did Father challenge the Family Service Plan. "[A] claim for

additional services and accommodations must be timely made." Id.

at 344, 60 P.3d at 294. Father did not raise the issue of lack

of visitation until trial. Under these circumstances, we cannot

conclude that Father's contentions regarding visitation have

merit. See id.

Father further contends that the Family Court violated

his due process rights by denying his request to delay the

termination of parental rights proceeding until after his trial

on alleged sexual abuse of his minor step-daughter was concluded.

The United States Constitution "does not ordinarily require a

stay of civil proceedings pending the outcome of criminal

proceedings." SEC & Exch. Comm'n v. Dresser Indus., Inc., 628

F.2d 1368, 1375 (D.C. Cir. 1980) (citing Baxter v. Palmigiano,

425 U.S. 308 (1976)). Father cites no authority to the contrary

and on appeal, Father provides no specific reason or argument why

the termination of parental rights proceeding should have been

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stayed until his criminal trial was concluded. Therefore, we

cannot conclude that this argument has merit.

Finally, Father contends that his due process rights

were violated when his court-appointed attorney was discharged

after he was defaulted for failing to appear at the hearing where

DHS was awarded foster custody of J.H.

In In re T.M., 131 Hawai#i 419, 436, 319 P.3d 338, 355

(2014), the Hawai#i Supreme Court held: "We direct that upon the

filing date of this opinion, trial courts must appoint counsel

for indigent parents upon the granting of a petition to DHS for

temporary foster custody of their children."

In In re L.I., 149 Hawai#i 118, 122, 482 P.3d 1079,

1083 (2021), the supreme court clarified "that In re T.M.

mandated that family courts appoint counsel for indigent parents

when DHS files a petition asserting custody over a child." The

supreme court further held:
The failure to timely appoint counsel is structural
error which, under State v. Loher, requires vacatur without
the necessity of proving harmful error. 140 Hawai #i 205,
222, 398 P.3d 794, 811 (2017). The family court's failure
to appoint Mother counsel when DHS filed its petition for
family supervision was structural error and cannot be deemed
harmless.

Id. at 123, 482 P.3d at 1084 (footnote omitted). Accordingly,

the supreme court vacated the judge in that case and remanded

"for further proceedings consistent with this opinion and

considering the best interests of the children." Id.

The supreme reiterated and explained its prior ruling

as follows:

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In In re T.M., the petitioner appealed from an order
granting temporary foster custody of her children to DHS
because she was not appointed counsel until nineteen months
after DHS filed its petition for temporary foster custody.
131 Hawai#i at 421, 319 P.3d at 340. This court held that
the family court's failure to appoint counsel constituted an
abuse of discretion. Id. The In re T.M. court explained
that, had the petitioner been appointed counsel sooner, she
may have been able to comply with the terms of the family
plan and provide her child with a safe family home, thus
potentially avoiding the subsequent termination of her
parental rights. Id. at 433, 319 P.3d at 352. The In re
T.M. court concluded by holding that "parents have a
constitutional right to counsel under article I, section 5
in parental termination proceedings and that from and after
the filing date of this opinion, courts must appoint counsel
for indigent parents once DHS files a petition to assert
foster custody over a child." Id. at 421, 319 P.3d at 340.

The In re T.M. court repeatedly explained that counsel
must be appointed once DHS files a petition to assert foster
custody. See id. at 435, 319 P.3d at 354 ("Thus, as soon as
DHS files a petition asserting custody over a child,
parents' rights are 'substantially affected.' At that
point, an attorney is essential to protect an indigent
parent's liberty interest in the care, custody and control
of his or her children."); id. ("Mandating the appointment
of counsel for indigent parents once DHS moves for custody
would remove the vagaries of a case-by-case approach.").

Id. at 121-22, 482 P.3d at 1082-83 (some emphasis added;

footnotes omitted).

In a recent case, this court similarly observed:
In In re L.I., the Hawai#i Supreme Court held that
family courts must appoint counsel for indigent parents even
earlier (where applicable), when DHS files a petition for
family supervision, because their parental rights are
already substantially affected at that point. 149 Hawai #i
at 122, 482 P.3d at 1083 (citation omitted). The court
further held that the failure to do so was structural error,
requiring vacatur without the necessity of proving harmful
error. Id. at 122-23, 482 P.3d at 1083-84. Citing In re
T.M., the court noted that "an attorney is essential to
protect an indigent parent's liberty interest in the care,
custody and control of his or her children." Id. at 122,
482 P.3d at 1083 (citation and internal quotation marks
omitted). The gravamen of this decision, as well as its
predecessors, is that such an attorney is essential
throughout proceedings that could result in the termination
of parental rights, and we so hold. Representation is so
essential that failure to provide counsel to indigent
parents facing possible termination of their parental rights
is structural error that cannot be deemed harmless error .
See id. at 122-23, 482 P.3d at 1083-84 (citation omitted).

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In the Interest of J.M., 150 Hawai#i 125, 142, 497 P.3d 140, 157

(App. 2021) (emphasis added).

Although we noted various ways that the father in In re

J.M. may have benefitted from continuous representation, we

recognized that those potential benefits and consequences related

only to whether the discontinued representation was harmful. Id.

Our holding nevertheless stated:
However, based on the Hawai#i Supreme Court's
decisions concerning the due process afforded to parents
facing possible termination of their parental rights,
particularly in In re L.I., we hold that the Family Court's
discharge of Father's attorney during the pendency of these
proceedings, prior to the Family Court's decision on DHS's
Motion to Terminate Parental Rights, violated Father's due
process rights and was structural error. Accordingly, with
respect to Father, the Order Terminating Parental Rights
must be vacated without the necessity of proving harmful
error.

Id. at 143, 497 P.3d at 158 (citation omitted; emphasis added).

In this case, Father was appointed counsel when he

first appeared for the initial hearing on the Petition for

Temporary Foster Custody. However, on August 14, 2019, Father's

counsel was discharged when Father (and Mother) failed to appear

for the evidentiary hearing on the Petition for Temporary Foster

Custody; Mother's counsel was similarly discharged. The petition

was granted, but no further service plan could be ordered due to

the parents' lack of appearance. When the Family Court

discharged counsel for Father and Mother, the court stated that

if parents contacted the attorneys again, the attorneys could

file ex parte motions to rescind the order of discharge. No ex

parte motion was ever filed.

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On January 14, 2020, DHS filed a Motion to Terminate

Parental Rights and served it on the parents' former counsel;

there is no indication that Father or Mother were served. On

January 21, 2020, the Family Court held a hearing on, inter alia,

the Motion to Terminate Parental Rights. Father's former

attorney appeared for Father and a "stand-in" lawyer appeared for

Mother's former attorney; both parents were present. Stand-in

counsel stated that he was not aware of the motion to terminate

and Mother had not had a chance to review it. The parents

requested a trial on the Motion to Terminate Parental Rights,

which was set for April 2, 2020 (but was later rescheduled).

The record does not reflect that any court hearings

were held during the five-month period between the August 14,

2019 hearing at which both parents' attorneys were discharged,

and the January 21, 2020 hearing.

Nevertheless, the cases discussed above make clear that

Father was not required to demonstrate that the discharge of his

attorney was harmful, because he was indigent and the termination

of his attorney during the pending of these proceedings violated

his due process rights and was structural error. In supplemental

briefing on this issue, DHS makes cogent arguments that the facts

of this case are different than the facts in In re J.M., and that

here, Father's ability to make legal arguments was not severely

impacted by the lack of legal representation for 159 days.

However, the fundamental due process rights and mandate at issue

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here are not subject to "the vagaries of a case-by-case

approach." See In re L.I., 149 Hawai#i at 122, 482 P.3d at 1083.

Mother's attorney was similarly discharged, warranting our

recognition of plain error. Accordingly, the Order Terminating

Parental Rights must be vacated as to both parents and we need

not address the other issues raised by Mother.

For these reasons, the Family Court's April 28, 2021

Order Terminating Parental Rights is vacated in its entirety, and

this case is remanded for further proceedings.2

DATED: Honolulu, Hawai#i, January 31, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Herbert Y. Hamada, Chief Judge
for Father-Appellant.
/s/ Katherine G. Leonard
Tae Chin Kim, Associate Judge
for Cross-Appellant/Mother.
/s/ Sonja M.P. McCullen
Abigail S. Dunn Apana, Associate Judge
Julio C. Herrera,
Patrick A. Pascual,
Regina Anne M. Shimada,
Deputy Attorneys General,
for Petitioner-Appellee
The Department of Human Services.

Michelle K. Moorhead,
(Legal Aid Society of Hawai#i)
Guardian Ad Litem.

2/
As noted in In re J.M., this ruling does not constitute the
beginning of a new "two-year period" to address the issues that led to J.H.'s
removal from the parents' care and DHS's request to terminate their parental
rights. 150 Hawaii at 143 n.10, 497 P.3d at 158 n.10. However, a new hearing
must be held concerning the best interests of J.H., consistent with this
Summary Disposition Order and, inter alia, the authorities cited herein. See,
e.g., In re LI, 149 Hawai#i at 123, 482 P.3d at 1084.

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