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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-MAR-2023
07:46 AM
Dkt. 99 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
IN THE INTEREST OF A.O.
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CASE NO. FC-S 18-0054)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Respondent-Appellant Father (Father) appeals from the
January 24, 2022 Order Terminating Parental Rights (TPR Order)1
entered by the Family Court of the Third Circuit (Family Court).2
On appeal, Father appears to raise three points of error:3
1 The Family Court entered its Findings of Fact and Conclusions of
Law (FOFs/COLs) on October 7, 2022 after the appeal was filed. The parties
were allowed to address the FOFs/COLs in supplemental briefing.
2 The Honorable Jeffery W. Ng presided.
3 Father's "points of error" section of his abbreviated opening
brief contains the first two points of error; however, the "argument" section
appears to raise a third argument which we construe as a third point of
error, in the interest of addressing cases on their merits. See Marvin v.
Pflueger, 127 Hawai‘i 490, 496, 280 P.3d 88, 94 (2012) (noting policy of
addressing cases on the merits, where possible, despite noncompliance with
appellate rule).
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(1) the Family Court lacked jurisdiction to hear Petitioner-Appellee Department of Human Services's (DHS) motion to
terminate parental rights (TPR Motion) because DHS filed the TPR
Motion beyond the time limitation period set forth in Hawaii
Revised Statutes (HRS) § 587A-33(i) (2018);4 (2) the Family Court
violated HRS § 587A-33(a)(1) and (a)(2) (2018)5 because it failed
to require DHS to prove, by clear and convincing evidence, that
Father's family was unable to provide AO with a safe family home
under the factors set forth in HRS § 587A-7; and (3) the Family
Court violated HRS § 587A-33(a)(3)(A) (2018)6 by failing to
require DHS to prove, by clear and convincing evidence, that
4 HRS § 587A-33(i) provides: "Absent compelling reasons, if the
child has been in foster care under the department's responsibility for an
aggregate of fifteen out of the most recent twenty-two months from the date
of entry into foster care, the department shall file a motion to terminate
parental rights." (Emphases added).
5 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; [and]
(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[.]
(Emphases added).
6 HRS § 587A-33(a)(3)(A) provides, in relevant part:
(3) The proposed permanent plan is in the best interests of
the child. In reaching this determination, the court shall:
(A) Presume that it is in the best interests of
the child to be promptly and permanently placed
with responsible and competent substitute parents
and family in a safe and secure home . . . .
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AO's resource caregivers (RCGs) were responsible and competent
substitute parents. In support of his second point of error,
Father objects to FOFs 14, 51, 82-83, 92-94, 105, and COLs
10-13.
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
Father's points of error as follows, and affirm.
The pertinent background is as follows. On August 15,
2018, police took AO into protective custody due to SO's
(Mother) incarceration and Father's whereabouts being unknown.
DHS placed AO in the care of RCGs. AO was seven years old when
AO entered into foster care on October 14, 2018.
On August 20, 2018, DHS filed a petition for temporary
foster custody of AO (Petition) and issued a service plan with
recommended services for Mother and Father to complete to
resolve DHS's safety concerns.
Mother intermittently participated in Family Court
proceedings and DHS's service plan, but was ultimately defaulted
for failure to appear. Mother did not appeal from the TPR
Order.
Father resided in Mexico throughout the Family Court
proceedings. On December 6, 2019, Father, for the first time,
appeared before the Family Court via telephone from Mexico.
Thereafter, Father participated in Family Court proceedings from
Mexico and sought placement of AO with his family in California.
Contemporaneously, Father's family expressed interest
in becoming resource caregivers for AO. Beginning in December
2018, DHS allowed, and Father's family participated in, "EPIC
Ohana Conferences" regarding AO. DHS also facilitated weekly
phone calls between AO and Father's family, in-person visits,
and travel for AO to California to meet Father's family.
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Throughout the Family Court proceedings, DHS explored permanent
placement of AO with Father's family.
On July 7, 2020, DHS filed the TPR Motion to terminate
Mother's and Father's parental rights due to Mother's and
Father's inability to provide AO with a safe family home at that
time or within a reasonable period of time. DHS submitted a
June 16, 2020 permanent plan contemplating adoption to an
appropriate caregiver (Permanent Plan).
Rather than setting a hearing on the TPR Motion, the
Family Court ordered DHS to look into placement of AO with
Father's family. As a result, DHS continued to facilitate
communication between AO and Father's family, and completed an
out-of-state home assessment for Father's family. On January 8,
2021, the Family Court, while recognizing that it remained open
to considering Father's family as a permanent placement option
for AO, scheduled trial on the TPR Motion.
The Family Court held trial on the TPR Motion on
August 27, October 29, and December 10, 2021, and January 14,
2022.
Father attended trial via telephone from Mexico.
During trial, Father testified, in relevant part, that he did
not know when he would be able to return to the United States,
he was unable to complete the requirements of his service plan
due to his location in Mexico and COVID-19, and he did not want
AO to be placed with him in Mexico, but wanted AO to be placed
with his family in California.
The Family Court granted the TPR Motion, and Father
timely appealed.
(1) Father contends that the Family Court lacked
jurisdiction to hear the TPR Motion because DHS filed the TPR
Motion beyond the time limitation period set forth in
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HRS § 587A-33(i). Specifically, Father argues that HRS § 587A-
33(i) required DHS to file a motion to terminate parental rights
no later than fifteen months after a child's entry into foster
care, or no later than twenty-two months after a child's entry
into foster care if DHS provided compelling reasons showing why
the extension was necessary. Absent such, DHS was precluded
from seeking to terminate parental rights. Father's point of
error lacks merit.
We review the Family Court's subject matter
jurisdiction de novo. In re Doe, 96 Hawai‘i 272, 283, 30 P.3d
878, 889 (2001) (citation omitted). We also review the Family
Court's interpretation of a statute de novo. In re Doe,
90 Hawai‘i 246, 250,
978 P.2d 684, 688 (1999) (citation omitted).
HRS § 587A-33(i) is not a jurisdictional statute. The
Family Court's jurisdiction is set forth in HRS § 571-11(9)
(Supp. 2021) and HRS § 587A-5. HRS § 571-11(9) provides in
relevant part, "Except as otherwise provided in this chapter,
the court shall have exclusive original jurisdiction in
proceedings: . . . (9) For the protection of any child under
chapter 587A[.]" HRS § 571-11(9). HRS § 587A-5 (2018)
provides:
Pursuant to section 571-11(9), the court shall have
exclusive original jurisdiction:
(1) In a child protective proceeding concerning any
child who is or was found within the State at the
time specified facts and circumstances occurred, are
discovered, or are reported to the department. These
facts and circumstances constitute the basis for the
court's finding that the child's physical or
psychological health or welfare is subject to
imminent harm, has been harmed, or is subject to
threatened harm by the acts or omissions of the
child's family; and
(2) In any prior child protective proceeding under
chapter 587, the former Child Protective Act.
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Here, the Petition and TPR Motion are proceedings for the
protection of AO under HRS § 571-11(9) and HRS § 587A-5. As
such, the Family Court had jurisdiction over the proceedings.
Father's interpretation of HRS § 587A-33(i) is
incorrect.
When construing a statute, the starting point is the
language of the statute itself. Courts are bound to give
effect to all parts of a statute, and that no clause,
sentence, or word shall be construed as superfluous, void,
or insignificant if a construction can be legitimately
found which will give force to and preserve all words of
the statute. Words are given their common meaning unless
some wording in the statute requires a different
interpretation.
In re Doe, 90 Hawai‘i at 250, 978 P.2d at 688 (citations,
brackets, and internal quotation marks omitted). The plain
language of HRS § 587A-33(i): (1) indicates that the time for
DHS to file a motion to terminate parental rights is qualified
in its entirety by compelling reasons, and (2) contemplates the
possibility of a child remaining in foster care for more than
twenty-two months by narrowing the statutory time frame to the
"most recent" twenty-two months. See HRS § 587A-33(i). As
such, any purported untimeliness and a child's placement in
foster care for more than twenty-two months does not, standing
alone, preclude DHS from filing a motion to terminate parental
rights.
Here, the record also reflects the Family Court set
forth compelling reasons justifying DHS's filing of the TPR
Motion beyond the general time frame set forth in HRS §
587A-33(i). At the conclusion of trial on January 14, 2022, the
Family Court found that "compelling reasons exist[ed] to delay
the filing" of the TPR Motion because, among other things,
Father "did not make an appearance in this case until December
6, 2019" and that any "alleged delay" was to "specifically give
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[Father] additional time to formally appear, be appointed a
lawyer and potentially begin a service plan." The Family Court
concluded that any "alleged delay of filing the Motion for
Termination of Parental Right was done to potentially benefit
[Father][.]" Father makes no argument contesting these
"compelling reasons." See HRS § 587A-33(i).
(2) Father contends that the Family Court violated HRS
§ 587A-33(a)(1) and (a)(2) because it failed to require DHS to
prove, by clear and convincing evidence, that Father's family in
California was unable to provide AO with a "safe family home,"
as defined under HRS § 587A-7, prior to terminating Father's
parental rights. In support, Father objects to FOFs 14, 51,
82-83, 92-94, 105, and COLs 10-13. Father's argument is without
merit.
"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) (citations and
internal quotation marks omitted). This court — interpreting
HRS § 587-73 (a)(1) and (a)(2)7 — explained:
7 HRS § 587-73 (a)(1) and (a)(2) (2009) (repealed 2010) provided:
(a) At the permanent plan hearing, the court shall
consider fully all relevant prior and current information
pertaining to the safe family home guidelines, as set forth
in section 587-25, including but not limited to the report
or reports submitted pursuant to section 587-40, and
determine whether there exists clear and convincing
evidence that:
(1) The child's legal mother, legal father, adjudicated,
presumed, or concerned natural father as defined under
chapter 578 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 the child's
legal mother, legal father, adjudicated, presumed, or
concerned natural father as defined under chapter 578 will
become willing and able to provide the child with a safe
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[W]hen the parent is not presently willing and able to
provide the child(ren) with a safe family home and it is
not reasonably foreseeable that the parent will become
willing and able to provide the child(ren) with a safe
family home within a reasonable period of time which shall
not exceed two years from the date upon which the
child(ren) were first placed under foster custody by the
court, the fact that the parent has a relative who is
presently willing and able to provide the child(ren) with a
safe family home until the parent's eventual release from
confinement is not a basis for denying a motion by DHS for
termination of the parent's parental rights.
In re T Children, 113 Hawai‘i 492, 499, 155 P.3d 675, 682 (App.
2007) (emphases added).8
More particularly, under HRS § 587A-33(a)(1) and
(a)(2), the Family Court must determine if there is clear and
convincing evidence that the "child's parent whose rights are
subject to termination" is not presently willing and able to
provide the child with a "safe family home," and that it is not
reasonably foreseeable that such parent will become willing and
able to provide child with a "safe family home" within a
reasonable period of time, not to exceed two years from child's
entry into foster care. (Emphasis added). In this regard, HRS
§ 587A-4 defines "parent" as:
any legal parent of a child; the birth mother, unless the
child has been legally adopted; the adjudicated, presumed,
or concerned birth father of the child as provided
in section 578-2(a)(5), unless the child has been legally
adopted; or the legal guardians or any other legal
custodians of the child.
family home, even with the assistance of a service plan,
within a reasonable period of time which shall not exceed
two years from the date upon which the child was first
placed under foster custody by the court[.]
8 In 2010, the Legislature repealed and replaced HRS Chapter 587
with HRS Chapter 587A. 2010 Haw. Sess. Laws Act 135. The provisions of HRS
§ 587-73(a)(1) and (a)(2) were re-codified as HRS § 587A-33 (a)(1) and
(a)(3), but remained substantively intact. Thus, the analysis in In re T
Children applies to HRS § 587A-33(a)(1) and (a)(2).
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"Family home" is defined as "the home of the child's legal
custodian." HRS § 587A-4. Further, "[s]afe family home
factors" is defined as "a list of criteria that must be
considered in determining whether a parent is able to provide a
safe family home as set out herein in section 587A-7." Id.
Given the requirements under HRS § 587A-33(a)(1) and
(a)(2), and the relevant statutory definitions, we conclude that
Father's argument -- that his parental rights should not have
been terminated because his family in California could provide a
safe family home for the child -- is without merit. The Family
Court found, and it is not contested, that Father was nonexistent in AO's life when AO was placed with DHS, in an initial
interview AO did not know his Father's name or whereabouts,
Father resides in Mexico, and Father testified he did not want
AO to live with him in Mexico but wanted AO to live with
Father's family in California.
Here, because Father was unable to provide AO with a
safe family home at the time, or within a reasonably foreseeable
period of time, Father's family's willingness and ability to
provide AO with a safe family home was not a basis to deny the
TPR Motion. See id. Thus, the Family Court's termination of
Father's parental rights based upon Father's inability to
provide AO with a safe family home, irrespective of Father's
family's ability to provide AO with a safe family home, did not
constitute an abuse of discretion, and we do not address whether
Father's family met the safe family home factors.9
9 The Family Court's TPR Order also ordered the June 16, 2020
Permanent Plan, which DHS recognizes is for AO's adoption to an appropriate
caregiver. In its answering brief, DHS notes that an October 25, 2021 Safe
Family Home Report stated that DHS could continue to assess placement with
relatives for AO, even after permanent custody is attained. Further, AO's
GAL noted in its answering brief that Father's family is being considered as
a placement option, and in its supplemental answering brief noted that
appropriate placement for AO is a separate issue from terminating Father's
parental rights which could be addressed through a placement hearing pursuant
to HRS § 587A-31.
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Father's objections to various FOFs and COLs are also
without merit. As a threshold matter, Father fails to provide a
concise legal argument about each contested FOF and COL. See
Rules Expediting Child Protective Appeals Rule 11(a)(4).
Nonetheless, our review of the record shows substantial evidence
to support FOFs 14, 51, 82-83, 92-94, and 105, and COLs 12-13;
they are not clearly erroneous and stand on appeal. See In re
Doe, 95 Hawai‘i at 190, 20 P.3d at 623 (requiring substantial
evidence to support FOFs and mixed FOFs/COLs on appellate
review) (citation omitted). COLs 10 and 1110 accurately
summarize HRS § 587A-7 and -33(a), and thus stand on appeal.
See id. (explaining that "COLs are reviewed on appeal de novo,
under the right/wrong standard") (citations omitted).
(3) Father contends that the Family Court erred by
failing to find, by clear and convincing evidence, that RCGs
were responsible and competent parents. Father points to no
legal authority, and we find none, in support of Father's
interpretation of HRS § 587A-33(a)(3)(A). In contrast, the
plain language of HRS § 587A-33(a)(3) requires the Family Court
to determine whether there exists clear and convincing evidence
10 COLs 10 and 11 provide:
10. In determining whether the criteria as set forth in
HRS § 587A-33 (a) have been established by clear and
convincing evidence, the court must consider fully all
prior and current information related to the safe family
home factors, as set forth in HRS § 587A-7, as to each
child in the family individually.
11. A parent's participation in services is only one
criterion of the safe family home factors, as stated in
HRS § 587A-7, in determining the parent's ability to
provide a safe family home. Not one criterion in the safe
family home guidelines, standing alone, is dispositive of
whether a parent can provide a safe family home. In re
Doe, 95 Hawai‘i at 183, 20 P.3d at 616 (2001). The parent
must be able to demonstrate the ability to provide a safe
family home for the child(ren). Id. HRS § 587A-7(a).
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that the proposed permanent plan is in the best interests of a
child. See HRS § 587A-33(a)(3). Here, the Family Court
determined that the Permanent Plan was in AO's best interest,
and Father does not contest this determination. As such,
Father's third point of error is without merit.
For the reasons discussed above, the January 24, 2022
Order Terminating Parental Rights entered by the Family Court of
the Third Circuit is affirmed.
DATED: Honolulu, Hawai‘i, March 16, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Ted H.S. Hong,
Chief Judge
for Respondent-Appellant
Father.
/s/ Keith K. Hiraoka
Associate Judge
Lance S. Kobashigawa,
Julio C. Herrera,
/s/ Karen T. Nakasone
Deputy Attorneys General
Associate Judge
for Petitioner-Appellee
Department of Human Services.
Laura J. Knudsen,
The Children's Law Project of
Hawai‘i
Guardian ad litem
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