In re "a" Children

• Citation: 193 P.3d 1228,119 Hawai'i 28
• Decision Date: 31 July 2008
• Docket Number: No. 28129.,No. 28130.,28129.,28130.
• Parties: In the Interest of "A" CHILDREN: N.A., M.A.(1), M.A.(2), and L.A. (FC-S No. 03-09383). and In the Interest of J.A. (FCS No. 03-09384).
• Court: Court of Appeals of Hawai'i

193 P.3d 1228

119 Hawai'i 28

In the Interest of "A" CHILDREN: N.A., M.A.(1), M.A.(2), and L.A. (FC-S No. 03-09383). and

In the Interest of J.A. (FCS No. 03-09384).

No. 28129.

No. 28130.

Intermediate Court of Appeals of Hawai`i.

July 31, 2008.

Joseph Dubiel for father-appellant.

Herbert Y. Hamada for mother-appellee/cross-appellant.

Patrick A. Pascual, deputy attorney general (Mary Anne Magnier, deputy attorney general, with him on the briefs) for petitioner-appellee Department of Human Services.

WATANABE, PRESIDING J., NAKAMURA, and FUJISE, JJ.

Opinion of the Court by WATANABE, Presiding J.

This consolidated appeal arises from two cases in the Family Court of the First Circuit (family court) that culminated on August 14, 2006 with orders (August 14, 2006 Orders) that (1) divested Father-Appellant (Father) of his parental and custodial rights¹ in J.A. and L.A.² (collectively, Sons), his biological sons with Mother-Appellant (Mother), and awarded permanent custody over Sons to the Director of the Department of Human Services, State of Hawai`i (DHS); and (2) divested Mother of her parental and custodial rights³ in Sons, as well as N.A., M.A.(1), and M.A.(2) (collectively, Triplets), her three daughters with a man who died in August 2002 (Deceased Husband), and awarded permanent custody over Sons and Triplets (collectively, Children) to DHS.

We affirm the August 14, 2006 Orders as to Mother. However, we hold that Father was denied his right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution, when he was not provided with appointed counsel until sixteen days prior to the trial on DHS's motion for permanent custody. Accordingly, we vacate the August 14, 2006 Orders as to Father and remand for further proceedings consistent with this opinion.

BACKGROUND

These two cases are unfortunately typical of the majority of child-protective cases that this court sees on appeal. We set forth the factual and procedural history of these cases in detail to highlight the complex legal, social, and procedural issues that are often involved in these cases, especially for parents who have tested positive for drugs and are threatened with the prolonged or permanent deprivation of their parental and custodial rights in their children.

A. The Petitions Seeking Family Supervision of Triplets and Foster Custody of Sons

On November 5, 2003, DHS received a report that Mother and her newborn son, J.A., had tested positive for amphetamines and methamphetamine and that Mother had not engaged in any prenatal services. The next day, DHS interviewed Mother, who admitted that she had smoked "ice" the day prior to J.A.'s birth. Mother then signed a Voluntary Foster Custody Agreement with DHS, allowing DHS to place Sons in a foster home.

On November 18, 2003, DHS filed two petitions in the family court. In FC-S No. 03-09383 (Case 1), DHS filed a petition that sought foster custody⁴ over L.A. and family supervision⁵ of Triplets. The petition in Case 1 alleged, in part, that Deceased Husband reportedly died of a heart attack in August 2002; Father was the "boyfriend" of Mother and "the biological father of [L.A.]"; Mother had signed a voluntary custody agreement that allowed DHS to place Sons in a child-specific foster home; DHS had confirmed the threats of abuse and neglect of Children due to Mother's use of illicit drugs and was requesting foster custody over Sons and family supervision over Triplets; DHS had assessed that Mother could provide a safe family home for Triplets; Mother appeared willing to engage in recommended services as she had admitted to using drugs and needing help with her drug problem, but Father's willingness to participate in services was unknown to DHS; Mother reported no history of domestic violence or mental health issues, was formerly employed at a distribution center, and had no criminal conviction record in Hawai`i; and Father was employed as a mason and had a purported history of substance abuse, no reported mental health issues, and several prior convictions.⁶ The petition prayed that an inquiry be made into the allegations and that action be taken pursuant to the provisions of HRS chapter 587, the Child Protective Act.

In FC-S No. 03-09384 (Case 2), DHS filed a petition seeking foster custody over J.A. The petition identified Father as the "Alleged Natural Father" of J.A. and included allegations similar to those alleged in the petition in Case 1.

The last page of both petitions included the following paragraph:

UNLESS THE FAMILY IS 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, THEIR RESPECTIVE PARENTAL AND CUSTODIAL DUTIES AND RIGHTS SHALL BE SUBJECT TO TERMINATION.

Attached to both petitions were two summonses, one addressed to Mother at an address in `Ewa Beach, and the other to Father, "Address Unknown."

On November 24, 2003, the family court entered an order appointing Chris C. China, Esq. (China) as guardian ad litem (GAL) for Children in both cases. On August 23, 2004, the family court entered an order that discharged China as GAL, retroactive to June 30, 2004, due to the expiration of an agreement to provide GAL services, and appointed Matthew T. Ihara, Esq. as GAL for Children. The record indicates that Children were represented by a GAL throughout the proceedings below.

B. The December 1, 2003 Hearing on the Petitions and Appointment of Initial Counsel for Mother

Although Father had not yet been served with the petitions in Cases 1 and 2 and Mother had not filed any answer to the petitions, the family court⁷ held a consolidated hearing on DHS's petitions in Cases 1 and 2 on December 1, 2003. Mother, but not Father, was present at the hearing.

Following the hearing, the family court entered orders concerning Child Protective Act (December 1, 2003 Orders) that (1) awarded DHS foster custody over Sons and family supervision over Triplets; (2) ordered implementation of a Family Service Plan dated November 7, 2003;⁸ (3) ordered the parties to appear at a review hearing on June 25, 2004, at 9:30 a.m.; (4) ordered DHS to submit a report and plan to the family court two weeks prior to the June 25, 2004 review hearing; (5) ordered the GAL to submit a report to the family court one week prior to the June 25, 2004 review hearing; and (6) provided that Children shall not be removed from the island of O'ahu without a court order or the prior written approval of DHS and GAL.

These orders were predicated on the family court's findings that (1) continuation in the family home would be contrary to Sons' immediate welfare; (2) DHS had made reasonable efforts to prevent or eliminate the need for Sons to be removed from the family home and to reunify Sons with Mother and Father (collectively, Parents); (3) there is reasonable cause to believe that continued placement in emergency foster care is necessary to protect Sons from imminent harm; and (4) in light of the reports submitted by DHS pursuant to HRS § 587-40 (Supp.2002) and the family court record, there was an adequate basis to determine that Children's physical or psychological health or welfare had been harmed or were subject to threatened harm by the acts or omissions of Children's family. The December 1, 2003 Orders also noted that Mother had knowingly and willingly waived her right to counsel for that day's proceedings and had knowingly and willingly stipulated to jurisdiction, foster custody of Sons, family supervision of Triplets, and the November 7, 2003 family service plan.

On December 2, 2003, the family court entered an order appointing attorney Carole D. Landry (Landry) as Mother's counsel.

C. DHS's Assumption of Foster Custody of Triplets

On December 30, 2003, DHS filed in Case 1(1) an ex parte motion for an order shortening time for a notice of motion for an immediate review; and (2) a motion for an immediate review hearing that was scheduled for December 31, 2003, the next day. The basis for these motions was that DHS had assumed foster custody of Triplets on December 16, 2003, upon discovery that Mother had continued to drink alcohol and use drugs after the December 1, 2003 hearing and was scheduled to enter the Salvation Army Addiction Treatment Services (SATS) residential drug treatment program sometime in January 2004.

Neither Mother, Father (who still had not been served with the original petitions), GAL, nor Landry appeared at the December 31, 2003 hearing, which was continued until January 9, 2004. An amended notice informing Mother and GAL, but not Father, of the date of the continued hearing on January 9, 2004 was not filed in the family court until January 7, 2004, and it is unclear from the record when Mother and GAL were served with the motion.

At the January 9, 2004 hearing, Mother, Landry, Father, and GAL were again absent. Following the hearing, the family court entered its orders concerning Child Protective Act in Case 1, which continued foster custody of Sons, ordered all parties to appear at a review hearing on May 25, 2004, granted DHS's December 30, 2003 motion to assume foster custody of Triplets, and provided that Mother's counsel and GAL "shall have 30 days to submit objections."

D. Service on Father of Some Documents and the Petition in Case 1 at the March 4, 2004 Hearing

On February 12, 2004, after several allegations surfaced that the Triplets may have faced inappropriate sexual behavior by their paternal uncle while in foster care, DHS filed a motion for an immediate review to make paternal uncle a limited party⁹ (motion for immediate review). At the March 4, 2004 hearing on this motion, both Parents were present, and Father was served in court with the following documents: "a summons, motion filed on 2/12/04, petition [for Case 1], safe family home report dated 11/7/03 & service plan dated 11/7/03." However, Father was not served with the petition in...