In re: AB and BB

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-AUG-2021
07:53 AM
Dkt. 100 SO

NO. CAAP-XX-XXXXXXX

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

IN THE INTEREST OF AB and BB

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 14-00235)

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

Appellant Mother (Mother) appeals from the Order

Terminating Parental Rights, filed on October 21, 2020, and the

Orders Concerning Child Protective Act, filed on October 22, 2020

(collectively, the TPR Orders), in the Family Court of the First

Circuit (Family Court).1 Mother also challenges, in part, the

Family Court's November 19, 2020, Findings of Fact and

Conclusions of Law (FOFs and COLs). Mother's parental rights to

her children, AB and BB (collectively, Children), were terminated

and permanent plans with the goal of adoption were approved.2

1/
The Honorable Jessi L.K. Hall presided.
2/
The parental rights of Children's legal and natural father
(Father) – who did not participate in these proceedings and was defaulted –
were also terminated.
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Mother raises four points of error on appeal,

contending that: (1) the TPR Orders are wrong because there were

less restrictive measures to ensure the best interests of the

Childen; (2) FOF 90 is clearly erroneous because it lumped Mother

and Father together, even though they are divorced, Mother was

willing and able to provide Children with a safe family home,

with the assistance of a service plan it was reasonably

foreseeable that Mother would become willing and able to provide

Children with a safe family home within a reasonable period of
time, and the May 6, 2020 Permanent Plans (Permanent Plans) and

goal of adoption were not in the best interests of the Children;

(3) FOF 91 is clearly erroneous because Mother was willing and

able to provide Children with a safe family home, with the

assistance of a service plan it was reasonably foreseeable that

Mother would become willing and able to provide Children with a

safe family home within a reasonable period of time, and the

Permanent Plans and goal of adoption were not in the best

interests of the Children; and (4) COLS 15, 16, and 17 are wrong

because Mother completed all of her services and it is

implausible that she could have completed all of her services and

still could not provide a safe family home for the Children, even

with the assistance of a service plan.

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 Mother's points of error as follows:

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FOFs 90 and 91 and COLs 15, 16, and 17 state:
FINDINGS OF FACT

. . . .
90. On September 30, 2020, pursuant to [Hawaii
Revised Statutes (HRS)] § 587A-33(a), the court found
by clear and convincing evidence that: (1) Mother and
Father were not willing and able to provide the
Children with a safe family home, even with the
assistance of a service plan; (2) it was not
reasonably foreseeable that Mother and Father would
becoming [sic] willing and able to provide the
Children with a safe family home, even with the
assistance of a service plan, within a reasonable
period of time; and (3) the Permanent Plans, with the
goal of adoption, dated May 6, 2020, were in the best
interests of the Children.

91. Accordingly, on September 30, 2020 the
Court entered orders granting the DHS' Motion to TPR
pursuant to HRS § 587A-33(b), terminating Mother and
Father's parental rights, awarding permanent custody
of the Children to the DHS, and ordering the permanent
plans, with the goals of adoption, dated May 6, 2020.
The Order Terminating Parental Rights and the Letters
of Permanent Custody were filed on October 21, 2020.
. . . .
CONCLUSIONS OF LAW

. . . .
15. Mother and Father are not presently
willing and able to provide the children with a safe
family home, even with the assistance of a service
plan.
16. It is not reasonably foreseeable that
Mother and Father will become willing and able to
provide the child[ren] with a safe family home, even
with the assistance of a service plan, within a
reasonable period of time.

17. The Permanent Plans dated May 6, 2020,
with the goal of adoption, are in the best interest of
the children.

As a preliminary matter, we note that the Children

entered foster care in January of 2015. Mother contends that

FOFs 90 and 91 are clearly erroneous and COLs 15, 16, and 17 are

wrong because Mother was willing and able to provide a safe

family home, especially with the assistance of a service plan, it

was reasonably foreseeable Mother would become willing and able

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to provide a safe family home, especially with the assistance of

a service plan, within a reasonable period of time, and the

Permanent Plans with the goal of adoption were not in the best

interest of the children. Mother challenges FOF 90 because the

Family Court "lumped together father and mother in the finding of

fact, even through the two are divorced." Mother claims that

there was no clear and convincing evidence that she was unwilling

or unable to provide a safe family home, even with the assistance

of a service plan. Mother notes that she completed all of the
services identified in the service plan, that she had

homeschooled the Children,3 and a witness, Dr. Taketa-Wong,

testified that Mother's house was livable and that Dr. Taketa-

Wong found no signs of abuse, bruising, or injury. Mother

submits that "the court can terminate parental rights if the

child is likely to be adopted. That was not the case here,

especially as AB was only a few months away from his 18th

Birthday. . . Thus, continued supervision of [Mother] and a

continued proposed reunification plan was clearly in the best

interests of AB and BB[.]"

FOF 90 is not clearly erroneous because it stated both

Mother and Father as unwilling and unable to provide a safe

family home. Generally speaking, marital status is not

implicated in a proceeding related to the termination of parental

3/
This appears to be in response to the fact that when BB entered
foster care at age 9, he had never attended school.

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rights. See HRS § 587A-33 (2018).4 The Family Court found

Father had been defaulted in the case since November 2, 2015, and

had expressed to Petitioner-Appellee the State of Hawai#i,

Department of Human Services (DHS) that he did not want to

reunify with the Children or participate in any services; thus,

Father was unwilling and unable to provide a safe family home.

4/
HRS § 587A-33 provides, in relevant part:
§ 587A-33 Termination of parental rights hearing.
(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. 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; and
(B) Give greater weight to the
presumption that the permanent plan
is in the child's best interest, the
younger the child is upon the
child's date of entry into foster
care; and
(4) The child consents to the permanent
plan if the child is at least
fourteen years old, unless the court
consults with the child in camera
and finds that it is in the best
interest of the child to proceed
without the child's consent.

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The FOFs concerning Father were not the basis for the Family

Court's termination of Mother's parental rights. There were

independent and unrelated bases for terminating Mother's parental

rights.

We conclude that there was clear and convincing

evidence that Mother was not presently willing and able to

provide a safe family home, even with the assistance of a service

plan, even though she had completed services. Unchallenged FOFs

include that, in 2011, DHS was contacted several times due to
Mother's violent, threatening, and out of control behaviors

involving the Children. In 2014, DHS assumed temporary foster

custody of the Children through police protective custody and

confirmed physical threat of abuse, neglect, and educational

neglect. At the same time, Mother was evicted by the police, and

the home was observed to be unsanitary, filthy, and strongly

smelling of urine; the home had very little food, several windows

were broken, and the Children were not enrolled in school and

were socially isolated.

Jahona Jackson (Jackson), a DHS human services

professional qualified to testify as an expert in the field of

social work and child protective and child welfare services,

testified that both AB and BB have high needs. AB, who is

autistic, has needs that are more physical, and BB needs

emotional stability.

It was reported that by February 15, 2019, Mother

completed recommended services in her service plan such as

parenting classes, individual therapy, and anger management, but

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not intensive in-home family therapy to address topics such as

reconnection, coping skills, developing a support system,

community linking, and parenting a child with special needs.

Although Mother had completed an anger management course, she had

inconsistent insight and use of skills, which caused her ability

to manage her anger to remain a concern.

Among other incidents that occurred after Mother

received services, with respect to AB, in April 2019, Mother

decided not to give AB all of his prescribed medication during an
unsupervised weekend visit because she wanted to see how AB would

do without the medication. Mother reported that AB attacked her

while she was driving on the freeway. In July 2019, when AB was

returned from another visit with Mother, there were still six

tablets in the bottle for his prescription medication, indicating

that Mother had not provided AB with his medication as

prescribed. Mother claimed information from the internet

indicated AB's prescribed medication was poisoning him and

instructed the resource caregivers to stop giving it to AB.

Jackson testified that Mother displayed no insight as to the

possible harmful and life-threatening effects of altering AB's

medications without medical guidance.

In May 2020, AB was hospitalized for water

intoxication, which occurred after Mother allowed or gave AB more

than twelve liters of water. Even after being advised by

hospital personnel not to give AB any more fluids while waiting

to be assessed, Mother gave AB three more liters of water. AB

cannot regulate his food or beverage intake, but Mother suggested

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that AB stop one of his medications because she thought it made

AB repeatedly ask for water. Jackson stated Mother did not show

insight as to administering basic needs of a child with AB's

conditions, because a caregiver would limit the amount of AB's

water by redirection or just saying no.

DHS's concerns about Mother's ability to parent BB

include that BB did not believe that Mother would be able to

provide the structure he would need, BB was exposed to emotional

and mental trauma, and Mother's absence from 2015 to 2017 caused
trauma to BB, who was fifteen years old at the time of trial.5

Mother would randomly show up to a foster home without having

visitation, and demand to see the Children for their birthdays

but then would not participate in the family court case to

reunify with the Children. Jackson did not think that Mother had

addressed the issues that necessitated removal of the Children

because Mother completed services, but failed to display insight

into the Children's needs. Jackson stated that Mother is not

able to provide for BB's emotional and psychological needs, she

failed to show insight or acknowledgments, she has not expressed

any responsibility concerning how the Children are developing,

and she does not think that she contributed to the Children's

5/
FOFs 26 and 27, which are not challenged on appeal, state:

26. Mother was absent in this case and defaulted for
over two years, from April 22, 2015 through June 14, 2017.
During this time, Mother did not contact the Children or
maintain any contact with the DHS. The DHS made several
reasonable attempts to contact Mother and engage Mother in
services by calling her and sending her emails.
27. Ms. Jackson testified that during this time
period she attempted to call Mother from other phone numbers
and that when Mother realized it was Ms. Jackson, Mother
would hang up.

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emotional and/or developmental state. During therapy sessions

involving Mother and BB, Mother was told not to do certain

things, but Mother persisted in those things, such as asking BB

to live with her, promising BB things, offering BB things, and

insisting on giving BB a cell phone during therapeutic services.

Mother denied such actions, but the Family Court did not find

Mother's testimony to be credible. The Family Court found

Jackson to be a credible witness.

Jennifer Cartwright (Cartwright), BB's therapist,

testified that Mother was defensive and unable to admit to some

of her parenting issues. Cartwright had concerns regarding

Mother's ability to provide for BB's safety and needs because

Mother was unable to recognize what is in BB's best interest;

Mother instead tried to bribe BB with games and other things.

Cartwright stated that Mother cannot stand up to BB and Mother

gave in to whatever BB wanted. In Cartwright's opinion, it is

not in BB's best interest to reunify with Mother because further

dragging the case on would not allow BB to move forward. The

Family Court found Cartwright to be a credible witness.

The hearing on whether to terminate Mother's parental

rights began on July 23, 2020, although from April to June 2020,

DHS was not able to determine Mother's whereabouts.

Mother testified that AB was not enrolled in school at

the time DHS became involved because he was abused at Ewa

Elementary School, BB was also abused at public school, and BB

asked to do home school. Mother did not, however, register with

or inform the Department of Education that the Children were

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being homeschooled nor certify curriculum compliance. As noted

above, the Family Court found Mother was not credible.

Mother's reliance upon Dr. Taketa-Wong's opinion that

Mother's house was livable is unwarranted because Dr. Taketa-Wong

visited Mother's residence in 2013, while DHS reported that the

family home was unsanitary and filthy in November of 2014.

Likewise, Dr. Taketa-Wong's statement that she found no signs of

abuse, bruising, or injury to AB is unhelpful because she saw AB

in 2013, while DHS observed bruising and marks when it became
involved in November of 2014. In any case, Jackson clarified

that there was no allegation of physical abuse, only threat of

abuse, neglect, and physical neglect.

For these reasons, as well as the entirety of the

evidence in the record of appeal, we conclude that there was

clear and convincing evidence that Mother was not presently

willing and able to provide a safe family home, even with the

assistance of a service plan. Even after completing services,

Mother was not able to provide for AB's physical needs by

preventing harm. Mother was not able to provide for BB's

emotional and psychological needs, by recognizing the harm she

caused and following his therapist's guidelines for conjoint

therapy sessions which would lead to reunification. Mother

disengaged from the case in the months immediately prior to the

start of the hearing seeking to terminate her parental rights

(after a previous absence from the case, without maintaining

contact with the Children or DHS, for a period of over two

years).

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We further conclude that there was clear and convincing

evidence that it was not foreseeable that Mother 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 the Children entered foster

care. The Children entered foster care in January of 2015. At

the time the hearing on terminating Mother's parental rights

began on July 20, 2020, the Children had been in foster care for

five and a half years. Clearly, it was not foreseeable that
Mother would become willing and able to provide the children with

a safe family home within two years of entering foster care. In

addition, Cartwright testified that it would take two more years

of family and individual therapy before Mother could have

unsupervised contact with BB. Thus, it would have been at least

another two years before Mother could be reunified with the

Children.

Mother challenges the Family Court's approval of the

Permanent Plans with adoption as the goal for both AB and BB.

Mother incorrectly suggests that the court can only terminate

parental rights if the child is likely to be adopted or that

family supervision or continued efforts at reunification is

possible, after a finding that a parent is not willing and able

to provide a safe family home and it is not reasonably

foreseeable a parent will become willing and able to provide a

safe family home. Rather, the Family Court must find that the

proposed permanent plan is in the best interest of the child

before terminating parental rights. HRS § 587A-33(a)(3). A

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permanent plan must state whether the permanency goal will be

achieved through adoption, legal guardianship, or permanent

custody, with adoption being the preferred option, unless there

is a compelling reason that legal guardianship or permanent

custody is in a child's best interest. HRS § 587A-32(a)(1)

(2018). Thus, the likelihood of adoption is not required before

parental rights may be terminated; family supervision or

continued reunification efforts is not an option for a permanent

plan. Because AB and BB were over fourteen years of age at the
time Mother's parental rights were terminated, AB and BB were

required to consent to the permanent plan or the court was

required to find it was in the Children's best interest to

proceed without their consent. HRS § 587A-33(a)(4). BB

consented to the permanent plan with the goal of adoption and the

Family Court found that AB was not competent to consent to a

permanent plan. Although AB would be turning eighteen a short

time after Mother's parental rights were terminated, DHS stated

that it would extend foster care past AB's 18th birthday to

ensure that he has a caregiver. Mother provided no argument that

it was in the Children's best interest that the permanent plan

goal should be legal guardianship or permanent custody.

Therefore, we conclude that FOFs 90 and 91 are not clearly

erroneous and COLs 15, 16, and 17 are not wrong.

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For these reasons, the Family Court's October 21, 2020,

and October 22, 2020 TPR Orders are affirmed.

DATED: Honolulu, Hawai#i, August 27, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Shawn A. Luiz, Chief Judge
for Respondent/Mother-Appellant.
/s/ Katherine G. Leonard
Scott D. Boone, Associate Judge
Julio C. Herrera,
Ian T. Tsuda, /s/ Keith K. Hiraoka
Deputy Attorneys General, Associate Judge
for Petitioner-Appellee
Department of Human Services.
Michelle K. Moorehead,
(Legal Aid Society of Hawai#i),
Guardian Ad Litem for BB

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