In Re Doe, 21972.

Citation20 P.3d 634,95 Haw. 201
Decision Date20 June 1995
Docket NumberNo. 21972.,21972.
PartiesIn the Interest of Jane DOE, Born on June 20, 1995.
CourtCourt of Appeals of Hawai'i

Richard S. Kawana, on the briefs, for mother-appellant.

James W. Walther, Kris S. Murakami, and Mary Anne Magnier, Deputy Attorneys General, State of Hawai`i, on the briefs, for Department of Human Services-appellee.

BURNS, C.J., WATANABE, J., and Circuit Judge MARKS in place of LIM, J., Recused.

Opinion of the Court by WATANABE, J.

This child protective services (CPS) case requires us to review the propriety of an order of permanent custody that involuntarily divested a mother of her parental and custodial rights and duties (parental rights) in her youngest child.

The undisputed evidence in the record is that Appellant, the legal and natural mother (Mother) of Jane Doe, born on June 20, 1995 (Jane), deeply loves and is devoted to Jane. Jane is equally bonded to Mother, has always been well-dressed and properly cared for while in Mother's custody, and has never been physically or sexually abused or harmed while in Mother's care. Mother has no history of substance abuse and has always shown the utmost concern for Jane's well-being and progress. Moreover, because Mother earnestly desired to keep her relationship with Jane, she yielded to the advice of social workers and others employed or engaged by Petitioner Appellee Department of Human Services for the State of Hawai`i (DHS), who felt that she had "too much on her plate," and voluntarily relinquished her parental rights in her older children so that she could focus on raising and nurturing Jane.

Nevertheless, the Family Court of the First Circuit (the family court) determined that Mother was not presently willing and able, and it was not reasonably foreseeable that Mother would become willing and able, to provide Jane with a safe family home because "there is no likelihood that she would sufficiently resolve her problems at any identifiable point in the future."

Among the "problems" mentioned by the family court in its decision were: (1) Mother's limited insight as to how issues regarding her own physical and sexual abuse affect her judgment and ability to provide for her children's needs; (2) Mother's Dependent Personality Disorder, which "negatively impacts Mother's ability to provide a safe family home for [Jane] because of difficulty in making independent decisions, tending to choose partners that are high risk, and exercising poor judgment"; (3) Mother's passive parenting style; (4) Mother's lack of understanding and consistency in providing structure, guidance, and discipline to Jane; (5) Mother's inconsistency in attending therapy sessions; (6) the fact that Mother has never been employed and has no training or education that would enable her to secure employment; (7) Mother's inability to be protective of Jane; and (8) Mother's dishonesty "regarding child care and the status of her living arrangements or personal relationships."

Accordingly, the family court entered a July 30, 1998 order that, in part, divested Mother of her parental rights in Jane, awarded permanent custody of Jane to DHS, and established a permanent plan for Jane (Permanent Custody Order).

Based on our review of the record in this case, we conclude that there was no clear and convincing evidence before the family court to support the entry of that part of the Permanent Custody Order that divested Mother of her parental rights in Jane. Accordingly, we reverse that part of the July 30, 1998 Permanent Custody Order that divested Mother of her parental rights in Jane and awarded permanent custody of Jane to DHS.1

BACKGROUND

Born on October 15, 1965, Mother was physically and sexually abused by her father (Grandfather) when she was between ten and fourteen years old. She kept the abuse a secret until she was seventeen years old and, following her disclosure, received counseling. Mother became pregnant when she was fifteen years old and gave birth on October 30, 1981 to her first child (Oldest Daughter), the product of a two-year relationship with Oldest Daughter's father. Unfortunately, history repeated itself and Grandfather, at some point not clear from the record, sexually assaulted Oldest Daughter.

In 1986, Mother married a man (Legal Father), with whom she had three children: Son 1, born on July 19, 1986; and twin sons, Sons 2 and 3, born on June 8, 1989. Legal Father was allegedly an alcoholic who physically abused Mother and the children. He also sexually assaulted Oldest Daughter and, as a consequence, was convicted, sentenced, and deported to Western Samoa, with orders not to return to Hawai`i until 1996.2

In April 1988, the allegations of physical and sexual abuse by Legal Father prompted DHS to file a petition on behalf of Oldest Daughter and Son 1 (the twins had not yet been born), seeking to protect them from sexual and physical harm, respectively, by Legal Father (CPS Case No. 1). Son 1 was returned to Mother's home that same month. Oldest Daughter was initially placed in foster custody. However, about six years later, in May 1994, the family court revoked its foster custody order and appointed a guardian over Oldest Daughter. DHS then closed CPS Case No. 1.

On July 21, 1991, Mother gave birth to Daughter 2, the product of Mother's relationship with a third man.

In April 1993, Mother informed DHS that she was involved with Defendant Father (Father). DHS learned thereafter of allegations that Father had physically abused his children by a prior marriage; DHS also learned that Father had been convicted, incarcerated, and was then on probation for sexually molesting his daughter by the prior marriage.3 Among the terms of Father's probation was that he have no contact with children and that he participate in services for sex offenders.4

In February 1995, DHS filed a petition seeking foster custody of Sons 1, 2, and 3 and Daughter 2 (CPS Case No. 2) "due to threatened harm and lack of medical/mental care by Mother and because Mother failed to voluntarily participate in recommended services."5 On March 28, 1995, all four children were placed in DHS foster custody.

Meanwhile, as a result of her relationship with Father, Mother had become pregnant, and on June 20, 1995, she gave birth to Jane at the Kapiolani Medical Center for Women and Children (KMC). Father was present for the birth, having received permission from his probation officer to attend the delivery.6 The next day, police officers showed up at KMC and, pursuant to Hawai`i Revised Statutes (HRS) § 587-22 (1993),7 took Jane into protective custody and turned her over to DHS, which placed her in a foster home.

PROCEDURAL HISTORY
A. The Petition for Temporary Foster Custody

On June 23, 1995, three days after Jane was born, DHS filed a petition for temporary custody (the Petition) in the family court, alleging that there was "a reasonable foreseeable substantial risk that harm may occur to [Jane] based upon an assessment of the criteria set forth in HRS [§] 587-25."8 The Petition requested that: (1) an inquiry be made into allegations that Jane's "physical or psychological health or welfare [was] subject to imminent harm, harmed[,] or subject to threatened harm by the acts or omissions of [Jane's] family"; (2) temporary foster custody of Jane be awarded to an appropriate authorized agency; (3) jurisdiction be established over Jane and other appropriate family members; (4) such other orders be entered as the family court deemed appropriate; and (5) Mother's and Father's respective parental rights be terminated "unless the family is willing and able to provide [Jane] with a safe family home, even with the assistance of a service plan, within a reasonable period of time."

The facts and circumstances mentioned in the Petition as supporting the allegation that Jane was subject to "a reasonable [sic] foreseeable substantial risk of harm" included the following: (1) Mother's five other children were already in foster care or under legal guardianship as a result of DHS's intervention in two other CPS cases; (2) Mother's compliance with court-ordered services in her other CPS cases had been poor; (3) Mother was still married to Jane's Legal Father, who had been convicted of sexually abusing Oldest Daughter and accused of physically abusing Mother and her other children; (4) Mother remained in a relationship with Father, even though she knew of Father's prior criminal history; and (5) Mother had allowed Father to spend the night in the same bedroom as Daughter 2.

B. The Adjudication Hearing on the Petition

The adjudication hearing9 on the Petition was held before the family court on July 10 and 13, 1995. Three witnesses testified for DHS.

Dr. Steven Choy (Dr. Choy), a clinical psychologist employed by KMC as the Director of the Kapiolani Child Protection Center, testified that "this is a case where there has been generational sexual, physical abuse in addition to neglect." Based on his review of the case files and past records involving Jane's family, Dr. Choy opined that "the risk of neglect and physical abuse [of Jane]-by partners also-would be high." Dr. Choy explained that in his experience, and based on "child development knowledge, a child under five is the most vulnerable child to both neglect and abuse. . . . An infant [Jane's] age-in fact, all of our cases as we did studies on them, show that severe abuse and death cases occurred with children under the age of three. So, that the risk becomes extremely high for that age group." Dr. Choy stated, however, that "[t]he issue of the sex abuse is something that is less prevalent at this point given the age of the child."

Dr. Choy testified that although he had not personally interviewed Mother, he had reviewed a psychological evaluation of Mother done by Dr. Russell Loo (Dr. Loo) and that Dr. Loo's diagnosis was that Mother had "a dependent personality disorder." Dr. Choy explained that

[a] person who
...

To continue reading

Request your trial
4 cases
  • In re Doe, 21972.
    • United States
    • Supreme Court of Hawai'i
    • June 20, 1995
    ...in order to review the published opinion of the Intermediate Court of Appeals (ICA) in In re Jane Doe, Born on June 20, 1995, 95 Hawai`i 201, 20 P.3d 634, (Ct.App. 2000) [hereinafter, "the ICA's opinion"]. The ICA's opinion partially vacated the order of the family court of the first circui......
  • In re Interest of R.K., CAAP–14–0001091
    • United States
    • Court of Appeals of Hawai'i
    • November 16, 2016
    ...v. [Dep't] of Social Servs. of Durham [Cty.], N.C ., 452 U.S. 18, 27 ... (1981) (quoting Stanley, 405 U.S. at 651...).95 Hawai‘i 201, 227, 20 P.3d 634, 660 (2000), reversed on other grounds, 95 Hawai‘i 183, 20 P.3d 616 (2001).Because foster custody was awarded in this case solely on the bas......
  • In re AK
    • United States
    • Court of Appeals of Hawai'i
    • April 18, 2022
    ...bookshelf as opposed to the mass media, or even between parents or providers of vastly unequal skills). Appellants correctly point out that In re Doe was an from a decision terminating parental rights; in that context, this court noted that where "important parental rights and interests [ar......
  • In the Interest of "K-F" Children, No. 28326 (Haw. App. 1/11/2008), 28326.
    • United States
    • Court of Appeals of Hawai'i
    • January 11, 2008
    ...case that was factually similar many respects to the instant case. The mother-appellant in In re Jane Doe, 95 Hawai`i 201, 20 P.3d 634 (App. 2000), like Father, had never abused, harmed, or neglected her daughter (Jane) Id. at 202, 207, 239, 20 P.3d at 635, 640, 672. As with Father, the fam......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT