In re: J.F.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-JAN-2025
08:17 AM
Dkt. 67 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

IN THE INTEREST OF J.F.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 22-00029)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)

Mother-Appellant (Mother) appeals from the May 30, 2024

Order Terminating Parental Rights (Termination Order) entered by

the Family Court of the First Circuit (Family Court).1 The

Termination Order terminated Mother's parental rights to J.F.

(Child), who was born in 2016.

Mother appears to raise three points of error on

appeal, contending that: (1) Petitioner-Appellee Department of

Human Services (DHS) failed to make reasonable efforts to reunify

Mother with Child, particularly in the first year of foster

custody; (2) DHS's December 19, 2023 initial permanent plan (the

Permanent Plan) does not comport with statutory requirements; and

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The Honorable Rebecca A. Copeland presided.
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(3) the Permanent Plan is not in Child's best interests. Mother

challenges Findings of Fact (FOFs) 109, 111, 112, 114, 124, 128,

and 129, and Conclusions of Law (COLs) 29 and 30, which are set

forth in the Family Court's July 15, 2024 [FOFs] and [COLs].2

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The challenged FOFs are as follows:
109. Under the circumstances presented by the case,
Mother was given every reasonable opportunity to effect
positive changes to provide a safe family home and to
reunify with the Child.
. . . .

111. 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.

112. 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 not to
exceed two years from the Child's date of entry into foster
care.

. . . .

114. Mother lacks the insight necessary to
consistently address her own safety issues.
. . . .

124. Adoption is in the best interest of this Child
because the Child deserves to be in a safe and stable home, and
deserves permanency.
. . . .

128. Under the circumstances presented by this case,
the DHS has exerted reasonable and active efforts to reunify
Father and Mother with the Child by identifying necessary,
appropriate, and reasonable services to address the
identified safety issues/problems, and by making appropriate
and timely referrals for these services. Any delays in the
delivery of services were due to Father's and Mother's
conduct.

129. Under the circumstances presented in this case,
the DHS treated Father and Mother fairly and serviced the
entire family intensely since the start of the instant DHS
and [Family Court] intervention with this family.
The challenged COLs are as follows:

29. The permanent plan goal of adoption is presumed
to be in the Child's best interests. HRS § 587A-32(b)(1).

30. The Permanent Plan, dated December 19, 2023, with
(continued...)

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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

points of error as follows:

(1) Mother argues that DHS did not provide her with a

reasonable opportunity to reunite with Child because DHS "did not

deny that its prior social worker did not do his job for one

year" and Mother was unsupported by DHS in providing services for

reunification. This argument is refuted by the Family Court's
unchallenged FOFs including, inter alia:
87. Mother is the perpetrator of harm by the threat
of abuse and threatened neglect through her untreated
substance abuse and mental health problems which prevent her
from being able to provide a safe family home for the Child.

. . . .

103. Mother's testimony that during the first year of
the case her assigned social worker did not "function," did
not contact her, and did not communicate with her is not
supported by the factual record and exhibits, and is not
credible.
104. Mother's testimony that she was not given a
service plan prior to the case being assigned to [DHS social
worker] is also not supported by the factual record and
exhibits, and is not credible.

. . . .

106. Mother has not fully participated in and
completed services to give her the skills to provide a safe
family home for the Child. Even though she completed part
of the services such as parenting education, she has not
demonstrated that she has made the necessary internal
changes and acquired the skills to provide a safe home for
the Child.
107. While Mother believed she should have been
afforded more time, the Court finds she had more than
sufficient time to show she could provide a safe family home
but she failed to do so.

. . . .

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(...continued)
the permanency goal of adoption, is in the best interests of
the Child.

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115. Despite being given repeated opportunities to
cooperate with the DHS, Mother failed to complete the
services recommended by the DHS in this case and failed to
demonstrate her ability to provide a safe family home for
the Child with the assistance of a service plan.
116. Under the circumstances presented in this case,
the DHS treated Mother fairly since the start of the DHS and
Court intervention with this family.
117. The DHS actively encouraged Mother to
participate in necessary and reasonable services to allow
her to reunify with the Child.
118. None of the underlying facts and data upon which
the DHS based its opinions, assessments, and recommendations
were shown to be unreliable or untrustworthy. The DHS'
continuing assessments in this case were conducted in an
appropriate manner.
119. Each of the Family Service Plans offered by the
DHS and ordered by the Court were fair, appropriate, and
comprehensive.

. . . .

126. Under the circumstances presented in this case,
the DHS made reasonable efforts to prevent or eliminate the
need to remove the Child from the family home.

127. Each of the service plans offered by the DHS and
ordered by the court were fair, appropriate, and
comprehensive.
. . . .

132. The expert testimony of the DHS Child Welfare
Services worker . . . testifying on behalf of the DHS, is
credible.

. . . .
135. The testimony of Mother, unless otherwise
stated, is not credible. Even if credible, the court gives
no or minimal weight to her testimony, unless otherwise
stated.

(Emphasis added).

Based upon the unchallenged FOFs, we conclude that the

Family Court did not clearly err in finding and concluding that

DHS made reasonable efforts to reunify Mother and Child, and that

Mother was not willing and able to provide a safe family home,

even with the assistance of a service plan, now or within a

reasonable period of time not to exceed two years from Child's

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April 5, 2022 date of entry into foster care. See HRS

§ 587A-33(a)-(b) (2018); In re J.M., 150 Hawai#i 125, 137, 497

P.3d 140, 152 (2021) ("Unchallenged findings of fact are binding

on appeal." (citation omitted)); In re Doe, 95 Hawai#i 183, 190,

20 P.3d 616, 623 (2001) ("[A]n appellate court will not pass upon

issues dependent upon the credibility of witnesses and the weight

of the evidence; this is the province of the trier of fact."

(citation omitted)); In re A.K., CAAP-XX-XXXXXXX, 2022 WL

1134991, at *3 (Haw. App. Apr. 18, 2022) (SDO) ("Two years is the
maximum, not minimum, amount of time within which a parent must

become willing and able to provide a safe family home."

(Citation omitted)).

(2) It appears that Mother argues that the Permanent

Plan adopted by the Family Court does not comply with the Child

Protective Act because the Family Court did not consider a

permanency goal of guardianship, the Permanent Plan does not

identify the proposed adoptive parents, the Permanent Plan does

not provide sufficient information regarding the current resource

caregiver, and the Permanent Plan does not establish a reasonable

time period for adoption.

Mother does not indicate where in the record these

arguments were raised and preserved for appeal. Upon review of,

inter alia, the transcript of the May 23, 2024 trial on the issue

of terminating Mother's parental rights, it does not appear that

Mother raised these arguments regarding the Permanent Plan.

Therefore, these arguments as to the Permanent Plan are waived on

appeal. See SC v. JC, 151 Hawai#i 153, 165, 509 P.3d 1116, 1128

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(App. 2022) ("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[.]").

We conclude that even if they were not waived, these

arguments are without merit. Hawaii Revised Statutes (HRS)

§ 587A-32(a) (2018) provides:
§ 587A-32 Permanent Plan. (a) The permanent
plan shall:

(1) State whether the permanency goal for the child
will be achieved through adoption, legal
guardianship, or permanent custody;
(2) Establish a reasonable period of time by which
the adoption or legal guardianship shall be
finalized;

(3) Document:

(A) A compelling reason why legal guardianship
or permanent custody is in the child's
best interests if adoption is not the
goal; or

(B) A compelling reason why permanent custody
is in the child's best interests if
adoption or legal guardianship is not the
goal;
(4) Establish other related goals, including those
pertaining to the stability of the child's
placement; education; health; therapy;
counseling; relationship with the child's birth
family, including visits, if any; cultural
connections; and preparation for independent
living;
(5) If a child has reached the age of fourteen,
describe the services needed to assist the child
with the transition from foster care to
independent living; and
(6) Describe the methods for achieving the goals and
objectives set forth in paragraphs (4) and (5).

(Emphasis added).

HRS § 587A-30 (2018) similarly states, inter alia, that

if a child is not expected to return to a safe family home, the

child's permanent placement out of the family home shall be "in

the following order of preference: (i) Adoption; (ii) Legal

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guardianship; or (iii) Other permanent out-of-home placement[.]"

HRS § 587A-30(b)(5)(B).

Thus, Hawaii's Child Protective Act requires a

compelling reason when a permanent plan states a goal of legal

guardianship or permanent custody over adoption, not the other

way around. Here, Mother argues that the Permanent Plan was

faulty because it should have stated why guardianship should not

be the goal for Child, but she fails to argue or identify

evidence supporting a conclusion that guardianship was in Child's
best interests. Moreover, there was ample clear and convincing

evidence in the record concerning, inter alia, unresolved

substance abuse and mental health problems, which supported a

conclusion that Mother was unable to provide a safe family home,

or would not become able to do so within a reasonable period, and

therefore the permanent plan of adoption was in Child's best

interests.

Mother appears to argue that, in the Permanent Plan,

DHS must unambiguously identify who DHS believes should adopt

Child. It further appears, however, that Mother recognizes that

this is not a requirement stated in the Child Protective Act or

any case law thereon. Mother contends that approval of the

Permanent Plan of adoption without the identification of the

proposed placement was not in Child's best interest because

Mother would be denied an opportunity to present evidence that a

particular proposed placement was not in Child's best interests.

However, the plain language of HRS § 587A-32 requires only that

the Permanent Plan state "whether the permanency goal for the

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child will be achieved through adoption, legal guardianship, or

permanent custody," (emphasis added), and nothing in the

statutory language supports a conclusion that it must also

identify a specific permanent placement concurrent with a

termination hearing.

With respect to the issues raised concerning the

current resource caregiver, it appears that Mother's arguments

primarily pertain to a prior resource caregiver. It appears that

testimony from both the guardian ad litem and DHS demonstrate
that the current resource caregiver provided Child with, inter

alia, stability and needed support; no concerns were identified

to the Family Court concerning the current resource caregiver.

Finally, Mother argues that the Permanent Plan does not

establish a reasonable time period for adoption. In the

Permanent Plan, DHS targeted January of 2024 as the goal for

termination and April of 2024 as the goal for placement for

adoption – a three month period. The actual dates shifted

forward because the January 2024 trial on termination was

continued to March, the March 2024 hearing was continued to May

(due to Mother's absence and default), and after the conclusion

of the May 2024 trial, a September 2024 date was set for a

permanency hearing. Mother fails to explain why under the

circumstances of this case, this time frame is not a reasonable

period to finalize Child's adoption, as required by HRS § 587A-

32(a). HRS § 587A-32(a)(2) requires that a permanent plan

establish a reasonable period of time for the adoption or

guardianship to be finalized, but does not mandate specific

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parameters for determining the reasonable time. In this case, it

appears that the proposed adoption was to be finalized within

four months after a May 23, 2024 trial on the termination of

parental rights. The September 2024 date allowed time for DHS to

make a final decision regarding the adoption and complete various

requirements and documentation before the first post-termination

permanency hearing required under HRS § 587A-31(a) (2018).

Accordingly, we conclude that Mother's arguments are without

merit.
(3) Finally, Mother argues that the Permanent Plan is

not in Child's best interests. However, it appears that this

argument is based upon Mother's other assertions, discussed

above. We have carefully reviewed each of Mother's related

challenges to specific FOFs and COLs, and we conclude that the

Family Court did not clearly err in the challenged FOFs, and the

challenged COLs are not wrong.

For these reasons, the Family Court's May 30, 2024

Termination Order is affirmed.

DATED: Honolulu, Hawai#i, January 15, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Herbert Y. Hamada,
for Mother-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Kurt J. Shimamoto,
Julio C. Herrera, /s/ Karen T. Nakasone
Erin K.S. Torres, Associate Judge
Abigail D. Apana,
Deputy Attorneys General,
Department of the Attorney General,
for Petitioner-Appellee.

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