In re Doe

• Decision Date: 18 October 2002
• Docket Number: No. 24348.,24348.
• Citation: 100 Haw. 20,58 P.3d 78
• Parties: In the Interest of Jane DOE, Born on February 2, 1999, Minor.
• Court: Hawaii Court of Appeals

58 P.3d 78

100 Haw. 20

In the Interest of Jane DOE, Born on February 2, 1999, Minor.

No. 24348.

Intermediate Court of Appeals of Hawai`i.

October 18, 2002.

Jeffry R. Buchli, Honolulu, on the briefs, for mother-appellant.

Carl F. Debo, Honolulu, on the briefs, for father-appellant.

David McCormick, Jay K. Goss, and Mary Anne Magnier, Deputy Attorneys General, State of Hawai`i, on the briefs, for Department of Human Services-appellee.

WATANABE, Acting C.J., LIM, and FOLEY, JJ.

Opinion of the Court by WATANABE, J.

These appeals by Mother and Father¹ (collectively, Parents) stem from a termination of parental rights (TPR) proceeding in which the Family Court of the First Circuit (the family court) terminated Parents' parental rights in their daughter, Jane Doe (Daughter), and awarded permanent custody of Daughter to the Department of Human Services, State of Hawai`i (DHS). The family court determined that although Parents clearly loved Daughter, they were incapable, due to their mental and cognitive deficiencies,² of raising her in a safe family home.

The legal issue of first impression that we must decide³ is whether the family court's termination of Parents' parental rights violated Parents' rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.

Concluding that no violation occurred, we affirm the Order Awarding Permanent Custody, entered by the family court⁴ on January 22, 2001, and the Orders Concerning Child Protective Act, entered by the family court⁵ on May 24, 2001, from which these appeals were taken.

BACKGROUND

Daughter was born on February 2, 1999. Because Parents had yelled at each other in the labor and delivery room and exhibited limited mental capacity and reasoning, hospital staff became concerned for Daughter's safety and reported their concerns to DHS. After evaluating the situation, DHS allowed Daughter to go home with Parents on February 6, 1999, premised on the understanding that Mother's sister-in-law would assist in caring for Daughter.

Following Daughter's discharge from the hospital, DHS arranged for a variety of services to be provided to Parents so they could learn how to appropriately care for Daughter. On October 26, 1999, police removed Daughter from Parents' residence, placed her in protective custody, and released her to DHS, which placed her in a DHS foster home "due to threatened harm and/or neglect by [Parents]." Three days later, DHS filed a Petition for Temporary Foster Custody of Daughter, alleging that there was "a reasonable foreseeable substantial risk that harm may occur to [Daughter] based upon an assessment of the criteria set forth in HRS [§ ] 587-25 [ (1993).]"⁶ Among the grounds mentioned by DHS in its petition were the following: (1) "On or about October 24, 1999, Mother threw a rock at Father, who was holding [Daughter] at the time"; (2) "[w]hile Mother was in the labor and delivery room, Father was heard swearing because her cries of pain kept him from sleeping"; (3) despite home-based and other services provided to Parents that focused on parenting skills, child development, anger management, conflict resolution, budgeting, and independent housing, Parents were still struggling with independent living, Mother's anger management problem, "conflicts [that] occasionally erupt into physical altercations[,]" and providing a safe home for Daughter; (4) despite assistance from Healthy Start, Parents were unable to maintain a sanitary living environment for Daughter, since Parents' home was observed with "rubbish," "mud, dust, dirty diapers, and clothing on the floors," "no food or diapers[,]" "virtually no furniture" so that Daughter had to sleep "on the tile floor with no cushion or mattress[,]" "beer cans outside the door[,]" and there was "an odor that made one service [worker] sick to her stomach)"; (5) "[b]oth [P]arents are diagnosed as mildly mentally retarded[,]" "have been seeing psychiatrist DAN MOTET for depression and both are prescribed Zoloft[,]" and "Father was in an automobile accident about 10 years ago, has a shunt in his head, and walks with a limp"; (6) "[Parents] are unemployed and receiving welfare benefits"; (7) "[Parents'] mental health limitations, inability to maintain a clean home even with frequent monitoring by service providers, the difficulty [Parents] are experiencing with independent living, Mother's anger management problem, and [Daughter's] vulnerability due to her young age constitutes [sic] threatened harm to [Daughter]"; and (8) "DHS knows of no other Hawaii family members other [sic] types of support to [Daughter]."

On November 2, 1999, DHS's Petition for Temporary Foster Custody was heard before Judge Karen M. Radius (Judge Radius). DHS introduced into evidence four exhibits, which documented the history of DHS's involvement with Parents and Daughter, assessed Parents' abilities to protect Daughter and maintain a safe family home, and summarized the concerns and observations of various social service providers. Following the hearing, Judge Radius entered an Order Concerning Child Protective Act, which, among other things: determined that the family court had exclusive jurisdiction over Daughter and Parents; ordered the award of foster custody of Daughter to DHS; incorporated as part of the order, the terms and conditions of an October 28, 1999 service plan "designed to help the family address and resolve the safety issues identified by DHS"; ordered the parties to appear for a review hearing on January 27, 2000; and ordered DHS and Daughter's guardian ad litem (GAL) to submit reports prior to the review hearing date.

On January 13, 2000, DHS submitted to the family court a revised Family Service Plan. At a January 27, 2000 review hearing, DHS and Parents agreed to comply with this revised service plan, which required Mother and Father to: (1) get psychiatric treatment focusing on depression; (2) undergo anger management and domestic violence counseling; and (3) receive home-based counseling and parenting skills focused on child development and needs, bonding and attachment, discipline, maintaining a safe and clean home, relationship issues, coping skills, and communication.

Also on January 13, 2000, DHS social worker Margaretha M. Lum (Lum) submitted to the family court a confidential Supplemental Safe Family Home Report, summarizing DHS's efforts to engage Parents in services and recommending the continuation of DHS foster custody of Daughter. Lum's report noted that Parents "appear to be willing to resolve the safety issues[,] ... have participated with court ordered services and seem to be trying very hard to comply with every aspect of the service plan." (Emphasis in original.) Additionally, Parents share a "genuine love of [Daughter and] a willingness to work with the system and follow through with recommendations" and Mother has also "proved to be quite resourceful in finding resources in the community[, which] seems to be the result of the many efforts made by previous service providers, ... indicat[ing] that [Mother] has the ability to learn new skills."

Despite these positive qualities, Lum recommended continued DHS foster custody of Daughter "until it can be determined that there are no other responsible adults willing to assist [Parents]" because

[Parents] are unable now or in the foreseeable future to maintain a safe home due to their limited capacity to understand exactly what it entails to provide a safe home. In addition, [Parents] appear to have a limited understanding of the needs of a one year old.

....

Both [Parents] appear to be functioning in the mildly retarded range of intellectual functioning. They seem to have many limitations, through no fault of their own. Although it seems highly unlikely that they will ever be able to raise a child on their own, it seems possible that they may be able to parent their child as long as there is a responsible adult in the home. In all fairness to them, this needs to be further explored[.]

(Bolded emphasis in original.) Lum cited the following example of Parents' limited understanding of the needs of a one-year old:

[Daughter], who is at the early stages of walking, was stumbling around some bookshelves in the visitation room and looked like she was loosing [sic] her balance. Neither parent stood up to prevent her from falling and possibly hitting her head. When instructed by the [Social Service Assistant] to assist [Daughter] because she might fall, [Mother] replied "that is okay, she falls all the time."

Lum's report also noted that "[b]oth Dr. [Tom] Loomis [ (Dr. Loomis) ] and Dr. Motet stated that [Parents] have many personal problems and are needy individuals, who have limited insight into the needs of a baby. Both Dr. Loomis and Dr. Motet recommended that a responsible adult be in the home at all times to ensure the safety of [Daughter] if and when [Daughter] is returned to the home." According to Lum, Mother suggested an acquaintance known only as "Willie" as someone who might qualify as a "responsible adult" to supervise their home. Lum planned to interview Willie, as well as a paternal aunt who lived on the mainland and was interested in helping Parents reunify with Daughter, to assess whether either would be able to take full-time responsibility for Daughter's safety.

In a report filed on January 20, 2000, Daughter's GAL also recommended "continued foster placement until it can be shown that [P]arents have completed their services."

At the January 27, 2000 hearing before the family court, Judge Paul T. Murakami presiding, DHS informed the family court that DHS had not been able to locate "appropriate adult supervisors who would be in the home on a full-time basis to help [P]arents take care of the children." An individual whose name had been submitted by Parents as a possibility apparently had been disqualified because of a prior criminal record which involved sex abuse. Following the hearing, the family court entered...