77 Hawai'i 109, Doe, In Interest of
| Citation | 883 P.2d 30 |
| Parties | 77 Hawai'i 109 In the Interest of Jane DOE, Born |
| Decision Date | 22 February 1987 |
| Court | Supreme Court of Hawai'i |
Gary Paul Levinson, Honolulu, for mother-appellant.
Jay K. Goss (John Campbell, Jr. and Kenneth Enright, with him on the brief), Deputy Attys. Gen., Honolulu, for Dept. of Human Services-appellee.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
Appellant, the natural mother (Mother) of Jane Doe (Doe), appeals from the family court's order denying her motion for reconsideration of the family court's determination of exclusive jurisdiction over Doe and award of foster custody of Doe to appellee Department of Human Services (DHS). On appeal, Mother contends that the family court erred in finding jurisdiction and awarding foster custody despite (1) a DHS social worker's unavailability for cross examination at trial and (2) the submission of supplemental DHS investigative reports without amending the original petition for foster custody, resulting in a deprivation of her constitutional right to due process. DHS contends that this court is without appellate jurisdiction because: (1) Mother's motion for reconsideration and notice of appeal were untimely; and (2) Mother did not appeal from a final order.
We conclude that this court has appellate jurisdiction to consider the merits of the appeal. We further conclude that Mother was afforded due process; accordingly, we affirm.
On September 23, 1992, the police placed Doe, then five years old, into protective custody after having received reports that she had been physically abused by her caretaker, Wendy Arruda. At the time, Mother was incarcerated, serving a six year sentence for a February 1992 drug-related conviction. Doe was placed in a DHS emergency shelter home.
On September 25, 1992, DHS social worker, Russell Braendlein, filed a petition with the family court alleging that while Mother was imprisoned, Doe had been the victim of physical and sexual abuse and that she was in imminent danger of similar neglect and abuse. The petition asserted that, from February 1992 through September 23, 1992, Doe had been moved four times--twice to Arruda, a recovering heroin addict, once to a family friend who was unwilling to care for the child, and once to a couple accused of sexually molesting the child. The petition further indicated that Doe had no received medical care for at least seven months and that no one had enrolled her in school, which had started in September 1992. The petition sought: (1) an inquiry into the foregoing allegations; (2) temporary foster custody to an appropriate agency; and (3) jurisdiction over Doe and appropriate family members.
As statutorily mandated, Braendlein submitted a written report (the Braendlein report) along with the petition, "evaluat[ing] fully all relevant prior and current information concerning each of the guidelines for determining whether the child's family is presently willing and able to provide the child with a safe family home [hereinafter, safe family home guidelines], as set forth in section 587-25." Hawai'i Revised Statutes (HRS) § 587-40(b)(1) (Supp.1991). The Braendlein report essentially documented the allegations in the petition, that is, that Mother had failed to provide Doe with a safe and stable home.
At the temporary foster custody hearing on October 21, 1992, Mother agreed to the temporary foster custody of Doe by DHS. Mother also stipulated to the admission of the Braendlein report, subject to cross examination and availability of Braendlein. Pursuant to HRS § 587-40(c) (Supp.1991), such report is admissible into evidence "provided that the person who prepared the report may be subject to direct and cross-examination as to any matter in the report, unless such person is unavailable." Id. Mother, however, would not stipulate to the jurisdiction of the family court because she feared that once the court had jurisdiction over Doe, it could automatically award permanent custody to DHS, which in turn could place Doe for adoption. Instead, Mother voiced her desire to cooperate with DHS in establishing a guardianship for Doe with JoAnn Castro, a friend of Mother.
Sometime following the October 21 hearing, Doe was placed in the care of Castro, with the approval of DHS. Thereafter, DHS conducted studies of Castro's home and agreed to allow Castro to pursue guardianship of Doe.
A pretrial conference was held on May 14, 1993, 1 at which time DHS moved to admit into evidence two reports by social worker Dina Koyanagi, dated April 19, 1993 and May 4, 1993 (the Koyanagi reports). 2 Mother objected, arguing that additional reports could not be admitted into evidence without appropriately amending the petition. Mother reasoned that, because DHS obtained temporary foster custody based on certain facts presented in the petition and original report, adjudication of the petition should be based on those facts and not on additional facts uncovered after the petition was filed, unless the petition was amended to reflect the additional information. The family court admitted the reports subject to cross examination.
At the trial on May 28, 1993, Mother moved to bifurcate the issues regarding jurisdiction and disposition or placement of Doe. Mother argued that, because the evidence to be considered in determining jurisdiction is limited to the information available up to the point of filing the petition, the court should not entertain any evidence uncovered after the petition was filed. Mother maintained that the evidence relevant to the issue of placement could prejudice or confuse the court in its determination of the jurisdictional issue. Mother also reasserted her objection to the admission of the Koyanagi reports, stating:
[T]he Petition and [the Braendlein report] have to stand on their own because [DHS] moved, they acted, they took ... a very bold act in taking a child into custody, into foster custody or temporary custody. And, therefore, the issue becomes ... [whether] the Petition and [the Braendlein report are] sufficient ... for this [c]ourt to invoke jurisdiction in this case[.]
The court denied Mother's motion to bifurcate.
Mother then moved to dismiss on the ground that because the Braendlein report was admitted into evidence subject to her right to cross examine and, because Braendlein was not going to testify, the case should be dismissed. The motion was denied.
At trial, the DHS's witness, Koyanagi, 3 who by stipulation was qualified as an expert in the field of child protective services, testified that, in the seven months preceding the filing of the petition, Doe was in the care of three different caretakers and was physically or sexually abused by at least two of them. On cross examination, Koyanagi testified that her testimony was based partly on her review of the Braendlein report.
Mother did not call any witnesses and did not testify on her own behalf.
Based on the record, the evidence presented, and in accordance with HRS § 587-63 (Supp.1991), 4 the family court determined that Doe was a child whose physical or psychological health or welfare has been harmed or is subject to threatened harm by the acts or omissions of her family, and on June 2, 1993, orally announced:
As to the issue of jurisdiction, therefore, the [c]ourt finds that its exercise of exclusive original jurisdiction in this case is appropriate for a couple of reasons: [Mother] had herself admitted to being sexually abused by an individual known to me as the step-great-grandfather of [Doe].
Now when [Mother] was incarcerated one of the people she placed [Doe] in the care and custody was that very same individual who as far as I can tell by a preponderance of the evidence also sexually abused [Doe].
Wendy Arruda also physically abused [Doe] and failed to provide adequate medical care.
Based upon those facts the [c]ourt is more than satisfied that [DHS] has shown by a preponderance of the evidence that [Doe] has been harmed by the acts or omissions of her mother.
The court went on to state:
As to placement the [c]ourt finds that [Doe] has done well in the Castro home, she has not acted out, and [she] is more at risk should she be placed out of the Castro home at this time than should she remain in.
[Doe] is accepted by the family according to the evidence. She feels comfortable with the Castro family. And the [c]ourt sees no reason to remove [her] from the [Castro] home at this time.
The court's written order was issued on June 16, 1993.
On June 23, 1993, Mother filed her motion for reconsideration. A hearing was held on June 30, 1993, and the written order denying the motion for reconsideration was entered on July 14, 1993. Mother filed her notice of appeal on July 20, 1993. Findings of fact and conclusions of law were entered on August 11, 1993.
DHS asserts that this court is without appellate jurisdiction because Mother failed to timely file her notice of appeal as required by Hawai'i Rules of Appellate Procedure (HRAP) 4(a)(1), which requires that "the notice of appeal ... shall be filed by a party with the clerk of the court or agency appealed from within 30 days after the date of the entry of the judgment or order appealed from." However, HRAP 4(a)(4) provides that if a timely motion under Hawai'i Family Court Rules (HFCR) Rule 59, for a new trial, or under HFCR Rule 59(g), for reconsideration, is filed "the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion." In other words, HRAP 4(a)(4) tolls the time in which an appeal must be taken if a timely motion for reconsideration is filed; then, the time for appeal runs from the order granting or denying the motion for reconsideration.
Under HFCR 59(g)(1), "[a] motion for reconsideration of the decree, order or 'decision and...
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