In re Doe, No. 21972.

CourtSupreme Court of Hawai'i
Citation20 P.3d 616,95 Haw. 183
Decision Date20 June 1995
PartiesIn the Interest of Jane DOE, Born on June 20, 1995.
Docket NumberNo. 21972.

20 P.3d 616
95 Haw.
183

In the Interest of Jane DOE, Born on June 20, 1995

No. 21972.

Supreme Court of Hawai`i.

March 30, 2001.


20 P.3d 617
James W. Walther, Mary Anne Magnier, and Jay K. Goss, Deputy Attorneys General, for the petitioner-appellee Department of Human Services on the writ

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and Circuit Judge MASUOKA, in place of ACOBA, J., recused.

Opinion of the Court by LEVINSON, J.

We granted the application for a writ of certiorari, filed by the petitioner-appellee Department of Human Services (DHS), 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 circuit, filed on July 30, 1998, and remanded for further proceedings. Among

20 P.3d 618
other things, the family court's order (1) awarded permanent custody of Jane Doe to the DHS, (2) terminated Mother's parental rights, and (3) adopted the DHS's permanent plan—all pursuant to the Child Protective Act (CPA), see Hawai`i Revised Statutes (HRS) ch. 587 (1993 & Supp.2000).1 We reverse the ICA's opinion and affirm the family court's July 30, 1998 order, as well as its order, filed on September 16, 1998, denying Mother's motion for reconsideration, and its concomitant findings of fact (FOFs) and conclusions of law (COLs), subsequently filed on November 10, 1998, because: (1) the CPA, contrary to the ICA's construction of it, is not "constitutionally infirm," insofar as it does not permit the termination of parental rights in the absence of clear and convincing evidence that a parent is "unfit" and, thus, does not deprive a parent of due process under either the United States Constitution2 or the Hawai`i Constitution,3 see infra section III.A; and (2) the family court's germane FOFs and COLs were not clearly erroneous, and, thus, the family court did not abuse its discretion in terminating Mother's parental rights, see infra section III.B

I. BACKGROUND

A. Procedural History

Jane was born on June 20, 1995. A police officer assumed protective custody of her, which was relinquished to the DHS on June 21, 1995. On June 23, 1995, the DHS filed a petition in the family court that sought temporary foster custody of Jane. After a hearing, conducted in connection with the petition on July 10, 1995, the parties agreed, and the family court ordered, that Jane be returned to Mother under the temporary family supervision of the DHS.

Numerous review hearings were conducted over the course of the next two and a half years. Eventually, on October 24, 1997, the DHS filed a motion, pursuant to HRS § 587-73(a) (1993), see infra section III.A, seeking permanent custody of Jane. On July 9, 1998, the family court convened a permanent plan hearing with regard to the DHS's motion, during which it received, without objection, thirty-eight DHS exhibits into evidence— comprised, for the most part, of reports prepared by the DHS, Jane's guardian ad litem (GAL), and other service providers, see HRS § 587-40 (1993 & Supp.2000)—and heard the testimony of four DHS witnesses, Jane's GAL, Mother, and Father. The family court also took judicial notice of "the related sibling's [sic] cases," i.e., family court proceedings involving Jane's five maternal half-siblings over the course of the previous thirteen years.4

On July 30, 1998, the family court granted the DHS's motion, filing an order that, inter alia, awarded the DHS permanent custody of Jane, terminated Mother's and Father's parental rights, and implemented the DHS's permanent plan, the goal of which was for Jane to be adopted within one year. On September 16, 1998, without a hearing, the family court summarily denied Mother's motion for reconsideration. Subsequently, on November 10, 1998, the family court filed its FOFs and COLs.

Mother appealed; Father did not. On appeal, Mother argued that, inasmuch as she was not accused of physically abusing or physically neglecting Jane and was benefitting from services that were being provided

20 P.3d 619
to her by the DHS until the DHS discontinued them, "the record ... demonstrate[d] that [the] DHS was programming Mother for failure by failing to provide the services it now says she could not benefit from." Mother posited that she was presently willing and able to provide a safe family home for Jane, with the assistance of a service plan, and that she had not been afforded a "full opportunity," during the three years after the permanent custody motion was filed, to demonstrate that she could do so. Finally, Mother argued that the family court had abused its discretion in denying her motion for reconsideration without first conducting a hearing

In a sweeping ninety-six page opinion, the ICA eventually held that "there was no clear and convincing evidence that Mother was unwilling or unable to provide Jane with a safe family home and was thus unfit to retain her parental rights in Jane." ICA's opinion at 239, 20 P.3d at 672. The ICA also held, sua sponte, that various aspects of the CPA were "constitutionally improper." Id. at 237-239, 20 P.3d at 670-672. The DHS subsequently filed a timely application for a writ of certiorari, which we granted.

B. Mother

The record reveals that, in 1988, Russell Loo, Ph.D., diagnosed Mother as exhibiting "Dependent Personality Disorder" (DPD), a diagnosis that he subsequently confirmed following a second psychological evaluation in 1996. Mother reported that, between the ages of ten and fourteen, she had been sexually and physically abused by her father (Grandfather). Dr. Loo noted that, during the second psychological evaluation, Mother "recognized somewhat hazily that her incestuous relationship influenced her to be submissive, nonassertive, and vulnerable to exploitation by others." According to Stephen J. Choy, Ph.D., a clinical psychologist who testified at the July 10, 1995 hearing, a person afflicted with DPD "has an extreme difficulty making independent decisions" and, consequently, presents "a high risk of problems with neglect and poor judgment." Dr. Choy noted that a "person with [DPD] ... generally chooses spouses or relationships that are abusive in nature."

Mother has given birth to six children by four different men: (1) Daughter 1 by Father 1; (2) Sons 1, 2, and 3 by Father 2; (3) Daughter 2 by Father 3; and (4) Jane by Father. Notwithstanding that Grandfather physically and sexually abused Mother, she maintained contact with him and, eventually, Grandfather sexually abused Daughter 1.5 Father 1, who himself had a history of domestic violence, reportedly physically abused Daughter 1; at the permanent plan hearing, however, Mother denied that Father 1 ever abused her or any of her children. Father 2 also sexually abused Daughter 1, as well as physically abusing Mother and Son 1.6

Mother met Father in 1993. In 1989, Father had sexually abused his nine-year-old daughter by a previous relationship, resulting in a criminal conviction pursuant to a no contest plea.7 As of that time, Father had sired four other children, each of whom reported being physically abused by him. Father, like Mother, was raised in an abusive environment—his father had physically abused both him and his mother. After conducting a psychological evaluation on February 19, 1996, Dr. Loo diagnosed Father, inter alia, as exhibiting signs of "Antisocial Personality Disorder" in partial remission.

Father has continually denied that he sexually abused his first daughter or physically abused any of his other children. According to Father, his children lied because their mother was upset at him for physically assaulting either her boyfriend, according to one version, or her source of drugs, according to another. Similarly, Mother asserted that Father's children had told her that, at the instigation of their mother, they had lied

20 P.3d 620
and continued to lie in order to protect her. In any event, according to the DHS's reports, Father "attribute[d] much of the inability to `control' children to the inability to hit them," felt that children do not respect their parents, and expressed "disappointment that physical punishment cannot be used with children."

Although Mother testified at the permanent plan hearing to the contrary, the record reflects that, throughout the pendency of the present matter, she did not believe that Father posed a threat of harm either to herself or to her children. In spite of the fact that a condition of Father's probation, as well as of the family court's orders, required him to avoid contact with Mother's children unless supervised by someone other than Mother, Mother occasionally spent the night at Father's residence with Daughter 2, and, on one occasion, Mother permitted Father to remain in a room in which she was breastfeeding Jane. On another occasion, Mother, without informing the DHS, took the children to see Father during the holidays, reportedly because "she had to see him."

At the time Jane was born, Mother initially asserted that she would terminate her relationship with Father; however, Father was present at Jane's birth at Mother's request, Mother continued to maintain contact with him, and, subsequently, Mother and Father expressed a desire to be together as a family. Eventually, Mother reported that she and Father had broken up "for CPS." Thereafter, Mother reentered a relationship with Father 1, hoped that she, he, and the children could become a family unit again, and, during a supervised visit, informed the children that Father was no longer their "Daddy." Yet in April 1998, Jane's GAL reported that Mother had again asserted that she wanted Father to be involved in Jane's life and had shown the GAL a photograph, into which Father's image had been digitally inserted, of Jane's baptism, which he had not attended. Nevertheless, at the...

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261 practice notes
  • State Of Haw.‘i v. Kalaola, No. 29163.
    • United States
    • Supreme Court of Hawai'i
    • August 19, 2010
    ...Sergeant Lee's testimony provides substantial evidence that Kalaola was ordered to disperse. See In re Doe, 95 Hawai‘i 183, 196, 20 P.3d 616, 629 (2001) (citation omitted) (noting that “the 124 Hawai'i 51237 P.3d 1117testimony of a single witness, if found by the trier of fact to have been ......
  • Lily E. Hamilton On Behalf of Amber J. Lethem v. Lethem, No. 27580.
    • United States
    • Court of Appeals of Hawai'i
    • June 30, 2011
    ...OF REVIEW We review a trial court's findings of fact (FOFs) under the clearly erroneous standard. In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623 (2001). A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in......
  • Teller v. Teller, No. 22440.
    • United States
    • Supreme Court of Hawai'i
    • August 30, 2002
    ...695, 704-05 (1996)); see also State v. Kotis, 91 Hawai`i 319, 328, 984 P.2d 78, 87 (1999). 53 P.3d 246 In re Doe, 95 Hawai`i 183, 190, 20 P.3d 616, 623 B. Conclusions of Law We review the trial court's [conclusions of law] de novo under the right/wrong standard. Raines v. State, 79 Hawai`i ......
  • In re Doe Children, No. 24697.
    • United States
    • Supreme Court of Hawai'i
    • June 16, 2004
    ...on June 16, 1994, 101 Hawai'i 220, 227, 65 P.3d 167, 174 (2003) (quoting In re Jane Doe, Born on June 20, 1995, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23 B. Subject Matter Jurisdiction "Whether a court possesses subject matter jurisdiction is a question of law reviewable de novo." In re D......
  • Request a trial to view additional results
262 cases
  • State Of Haw.‘i v. Kalaola, No. 29163.
    • United States
    • Supreme Court of Hawai'i
    • August 19, 2010
    ...Sergeant Lee's testimony provides substantial evidence that Kalaola was ordered to disperse. See In re Doe, 95 Hawai‘i 183, 196, 20 P.3d 616, 629 (2001) (citation omitted) (noting that “the 124 Hawai'i 51237 P.3d 1117testimony of a single witness, if found by the trier of fact to have been ......
  • Lily E. Hamilton On Behalf of Amber J. Lethem v. Lethem, No. 27580.
    • United States
    • Court of Appeals of Hawai'i
    • June 30, 2011
    ...OF REVIEW We review a trial court's findings of fact (FOFs) under the clearly erroneous standard. In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623 (2001). A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in......
  • Teller v. Teller, No. 22440.
    • United States
    • Supreme Court of Hawai'i
    • August 30, 2002
    ...695, 704-05 (1996)); see also State v. Kotis, 91 Hawai`i 319, 328, 984 P.2d 78, 87 (1999). 53 P.3d 246 In re Doe, 95 Hawai`i 183, 190, 20 P.3d 616, 623 B. Conclusions of Law We review the trial court's [conclusions of law] de novo under the right/wrong standard. Raines v. State, 79 Hawai`i ......
  • In re Doe Children, No. 24697.
    • United States
    • Supreme Court of Hawai'i
    • June 16, 2004
    ...on June 16, 1994, 101 Hawai'i 220, 227, 65 P.3d 167, 174 (2003) (quoting In re Jane Doe, Born on June 20, 1995, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23 B. Subject Matter Jurisdiction "Whether a court possesses subject matter jurisdiction is a question of law reviewable de novo." In re D......
  • Request a trial to view additional results

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