In Re: O.H.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2024
07:31 AM
Dkt. 92 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF O.H.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 19-00122)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)

Mother-Appellant appeals from the Order Terminating
Parental Rights (TPR Order), entered on July 11, 2023, in the
Family Court of the First Circuit (Family Court). The TPR Order
terminated Mother's parental rights to O.H. (Child), who was born
in April 2019 and abandoned to strangers by Child's father in May
2019.
On appeal, Mother contends that the Family Court erred:
(1) in finding clear and convincing evidence that Mother would
not be able to provide a safe home for Child within a reasonable
period of time; (2) in entering the TPR Order, where the June 10,
2021 Motion to Terminate Parental Rights (TPR Motion) did not
contain a permanent plan that was found to be in Child's best
interests; and (3) in failing to appoint counsel for Mother for
102 days at the beginning of the case. Mother also challenges
certain aspects of the Family Court's August 31, 2023 Findings of
Fact and Conclusions of Law (FOFs/COLs). Specifically, Mother
challenges FOFs 119, 169, 175, 196, 202, 210, 216, 220, 226-228,
232, 238 and 244.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the arguments advanced and the issues raised, we resolve Mother's
contentions as follows, and affirm.
(1) Mother appears to contend that DHS failed to
establish by clear and convincing evidence, pursuant to HRS §
587A-33(a) (2018),1/ that Mother will not become willing and able
to provide Child with a safe family home, even with the
assistance of a service plan, within a reasonable period of time.
Her contention is based on her challenge to the above-identified
FOFs, including her argument that she testified that she had been
diligently looking for suitable housing and might need three to
six months to find it.
We review the Family Court's FOFs for clear error. See
In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001) (citing
In re Doe, 84 Hawai#i 41, 46, 928 P.2d 883, 888 (1996)).
FOF 119 is not clearly erroneous. The January 31, 2022
Supplemental Safe Family Home Report to Court demonstrated that
Mother "expressed her desire to have [Child] be placed with
paternal grandmother in Alabama and that she may be agreeable to
Legal Guardianship with paternal grandmother." On February 7,
2022, Mother agreed to guardianship of Child by paternal
grandmother, and the Family Court permitted Child to be placed in
Alabama if the Interstate Compact on Placement of Children
referral was granted. On May 31, 2022, DHS reported that Mother

1/
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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continued to support Child's placement with paternal grandmother
in Alabama. The record reflects that Mother repeatedly agreed to
Child's placement with paternal grandmother in Alabama.
FOFs 169 and 216 are not clearly erroneous. In FOF
167, which Mother does not contest, the Family Court found that
DHS maintained consistent communication with Mother in attempts
to provide her with support. See Balogh v. Balogh, 134 Hawai#i
29, 33 n.3, 332 P.3d 631, 635 n.3 (2014) (holding that
unchallenged findings of fact from the family court are binding
on the appellate court). Throughout the case, Mother failed to
provide or delayed in providing contact information and/or
consents for resources, so as to allow DHS to verify her
participation in services. See, e.g., FOFs 108, 110, 115-16,
139, 145, 168, 171, 212, and 214 (all unchallenged). Mother had
also relocated to California without informing DHS or the
guardian ad litem (GAL).
FOFs 175, 220 and 232 are not clearly erroneous, and we
also reject Mother's related argument based on her purported
testimony that she might need only three to six months to find
suitable housing. At the July 10, 2023 hearing, when asked how
much longer she would need to find housing in Georgia for herself
and Child, Mother testified:

I'm still pretty much getting to know the area, so it would
be kind of difficult for me to say. If I had to give an
estimate, I would say in the next three to -- three to six
months. But it would be kind of difficult for me to say, as
I'm new to the area. Yeah, it -- it would be kind of
difficult for me to say at this time.

In FOF 201, which Mother does not contest, the Family Court found
that "[t]hroughout the pendency of this case Mother was unable to
secure stable housing where she was able to have the Child placed
with her, including up to and as of [the July 10, 2023 hearing,]
which was four years after the date of entry into foster care."
See In re AK, No. 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." (citing In re MP, No.
CAAP-XX-XXXXXXX, 2019 WL 1614717 at *2 (Haw. App. Apr. 16,
2019))). In any event, based on our review of the record, we

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conclude that FOFs 175,2/ 220 and 232, which present mixed issues
of fact and law, are supported by substantial evidence from which
a reasonable factfinder could have found it highly probable that
these FOFs were true. See In re JK, 149 Hawai#i 400, 409-10, 491
P.3d 1179, 1188-89 (App. 2021).
FOF 196 is not clearly erroneous. Mother offers no
legal support for her argument that her hospitalization in May
2019 did not render her "unavailable" for Child, as that term is
used in FOF 196. Additionally, in FOF 17, which Mother does not
contest, the Family Court found that on May 14, 2019, DHS
confirmed the threat of abuse and threat of neglect to Child due
to "unknown mother and unknown father" being unavailable to care
for Child. Further, FOF 45, which Mother does not contest,
reflects that at the September 11, 2019 contested hearing on
DHS's Petition for Temporary Foster Custody, the Family Court
found that Child's "physical or psychological health or welfare
had been harmed or was subject to threatened harm by the acts or
omissions of . . . Child's family[.]" These unchallenged FOFs
establish that Child was subject to threatened harm by Mother's
acts or omissions when Father left Child with strangers and
Mother was not there to care for Child. See HRS § 587A-4
(defining "[t]hreatened harm").
FOF 202 is not clearly erroneous. In the February 19,
2020 Short Report, Mother reported that she was not prepared to
take Child full-time because she needed more time to find a
suitable home. Indeed, the unchallenged FOFs reflect that
throughout the pendency of the case, DHS could not verify that
Mother had stable housing that could include Child. See, e.g.,
FOFs 56, 95, 109, 116, 130, 146, and 201 (all unchallenged).
Consistent with FOF 22, Mother testified at the July 10, 2023
hearing that her then-current housing did not allow minors.
FOF 210 is not clearly erroneous. Mother appears to
contend that FOF 210 is inconsistent with FOF 56, but that is not
the case. FOF 210 is supported by substantial evidence.

2/
We further address below in section (2) that part of FOF 175 that
states the court's conclusion that the proposed permanent plan was in the
Child's best interests. We also address FOF 244 in section (2).

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FOFs 226 and 238 are not clearly erroneous. In FOFs
170 and 174, which Mother does not contest, the Family Court
found that DHS provided Mother with the opportunity to engage in
services and gave her enough time to do so, but Mother failed to
do so. DHS social worker Maili Taele (Taele) testified that
Mother did not request additional services, did not complete
services other than parenting education, and would not be able to
provide a safe family home for Child within a reasonable period
of time, because Mother had not completed services over the span
of four years. The GAL also testified that Mother's relocations
did not "cut mustard" with him.
FOF 227 is not clearly erroneous. Mother has not
explained how the multiple social workers assigned to her case
meaningfully impacted her ability to complete services within a
reasonable period of time. In contrast, at the July 10, 2023
hearing, the Family Court found that the number of assigned
social workers did not meaningfully impact whether Mother or
Father were able to establish a safe family home either now or
within a reasonable period of time, "as the social workers
maintained contact with Mother . . . consistently and in an
effort to determine if she was complying and to support her."
This conclusion is supported by FOF 167, which Mother does not
contest.
FOF 228 is not clearly erroneous. In FOFs 167 and 171,
which Mother does not contest, the Family Court found,
respectively, that DHS maintained consistent contact with Mother
and that Mother repeatedly failed to provide DHS with
"information, documentation, and/or consents that would have
allowed the DHS to verify Mother's oral claims that she was in
therapy." The Family Court made other similar findings in FOFs
115, 129, 139, 145, 214, and 229, all uncontested.
In sum, the Family Court did not clearly err in finding
clear and convincing evidence that Mother will not become willing
and able to provide Child with a safe family home, even with the
assistance of a service plan, within a reasonable period of time.
(2) Mother appears to contend that the Family Court
erred in entering the TPR Order, because the June 10, 2021 TPR
Motion did not contain a permanent plan that was found to be in

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Child's best interests. To be clear, based on her challenges to
FOFs 175 and 244, it appears that Mother is actually arguing that
the Permanent Plan dated April 26, 2023, which is attached to the
TPR Order and which the Family Court found to be in Child's best
interests, is not the same as the initial Permanent Plan, dated
May 17, 2021, which was attached to the TPR Motion.
Mother offers no legal authority supporting her
argument, and we do not read the relevant statutes as requiring
that the permanent plan attached to the motion to terminate
parental rights must be the same permanent plan considered during
the termination of parental rights hearing and eventually found
to be in the child's best interests. See HRS §§ 587A-32,
-33(a)(3) (2018). Mother does not argue that she did not receive
proper notice of the April 26, 2023 Permanent Plan3/ or was
otherwise prejudiced by the updating of the permanent plan.
Moreover, Taele and the GAL testified that the April 26, 2023
Permanent Plan was in Child's best interests, and the Family
Court reached the same conclusion. Mother's contention is
therefore without merit, and FOFs 175 and 244 are not clearly
erroneous.
(3) Mother contends that the Family Court committed
structural error by failing to appoint counsel for Mother at the
beginning of the case – from May 17, 2019, to August 28, 2019.
See In re L.I., 149 Hawai#i 118, 122-23, 482 P.3d 1079, 1083-84
(2021); In re T.M., 131 Hawai#i 419, 435, 319 P.3d 338, 354
(2014); see also In re P Children, No. CAAP-XX-XXXXXXX, 2023 WL
6122124, at *2-4 (Haw. App. Sept. 19, 2023), cert. granted, No.
SCWC-XX-XXXXXXX, 2023 WL 8609882 (Haw. Dec. 7, 2023) (Order).
It appears from the uncontested FOFs and the record,
however, that Mother was not appointed counsel when the May 17,
2019 Petition for Temporary Foster Custody was filed – or prior
to the May 21, 2019 hearing on the petition – because Child had
been abandoned to strangers, and Mother and Father's identities
were unknown. See FOFs 9-23 (all unchallenged). Prior to the

3/
For example, the April 26, 2023 Permanent Plan was listed as
State's Exhibit 77 and attached as such to DHS's supplemental Exhibit List,
filed on May 4, 2023.

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next court date, August 28, 2019, DHS identified Mother and
Father. FOFs 28-29, 37. Mother made her initial court
appearance at the August 28, 2019 hearing. FOF 37. Prior to
commencement of the hearing, Mother applied for and received
court-appointed legal counsel, who appeared on Mother's behalf at
the August 28, 2019 hearing and throughout the remainder of the
proceedings. FOF 6, 38.
These circumstances distinguish this case from L.I.,
T.M., and P Children, all of which involved a known parent or
parents who were not timely appointed legal counsel. Here, in
contrast, Mother's identity was unknown when the Petition for
Temporary Foster Custody was filed and heard; after she was
identified, she received court-appointed counsel prior to her
first court appearance. In these circumstances, we conclude that
the Family Court did not commit structural error in not
appointing counsel for Mother any earlier. See In re Adoption of
a Male Child, No. CAAP-XX-XXXXXXX, 2024 WL 510988, at *2 (Haw.
App. Feb. 9, 2024) (SDO) ("A.M.'s argument that there was
structural error in the CPS Case because the family court did not
appoint counsel for the unidentified father, who was properly
served and defaulted, is without merit." (citation omitted)); cf.
In re JH, 152 Hawai#i 373, 378, 380, 526 P.3d 350, 355, 357
(2023) (upholding the appointment of counsel at parents' first
hearing as timely).
For the reasons discussed above, we affirm the Order
Terminating Parental Rights, entered on July 11, 2023, in the
Family Court of the First Circuit.

DATED: Honolulu, Hawai#i, February 28, 2024.

On the briefs:

Herbert Y. Hamada /s/ Keith K. Hiraoka
for Mother-Appellant. Presiding Judge

Kurt J. Shimamoto, /s/ Clyde J. Wadsworth
Julio C. Herrera, Associate Judge
Patrick A. Pascual, and
Regina Anne M. Shimada, /s/ Karen T. Nakasone
Deputy Attorneys General Associate Judge
for Petitioner-Appellee.

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