In re Doe

• Decision Date: 26 December 2002
• Docket Number: No. 24079.,24079.
• Citation: 60 P.3d 285,100 Haw. 335
• Parties: In the Interest of Jane DOE, Born on December 29, 1999, Minor.
• Court: Hawaii Supreme Court

60 P.3d 285

100 Haw. 335

In the Interest of Jane DOE, Born on December 29, 1999, Minor.

No. 24079.

Supreme Court of Hawai`i.

December 26, 2002.

Joseph Dubiel, for Mother-Appellant.

Wilfred S. Tangonan, for Father-Appellant.

Susan Barr Brandon, Jay K. Goss, and Mary Ann Magnier, Deputy Attorneys General, for Department of Human Services-Appellee.

LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.; with MOON, C.J., Concurring Separately and Dissenting.

Opinion of the Court by ACOBA, J.

We hold that a parent's allegations of a violation of the Americans with Disability Act (ADA), 42 U.S.C. §§ 12131 through 12134, do not raise a defense in a proceeding to terminate parental rights under Hawai`i Revised Statute (HRS) § 587-73 (1993). However, Department of Human Services-Appellee (DHS) should provide "[e]very reasonable opportunity" to a parent to succeed in reuniting a family, HRS § 587-1 (1993 & Supp. 2001), particularly in establishing the steps necessary to reunite the family in the form of a service plan.¹See HRS 587-26 (1993; Supp.2001). In addition, we hold that a criminal charge, conviction, or incarceration does not per se result in the forfeiture of parental rights, but confinement can be considered a factor in deciding whether a parent may provide a safe family home in the foreseeable future. In the instant case, allegations of ADA violations raised by Mother-Appellant (Mother)² do not constitute a defense to the termination of parental rights in her daughter, Jane Doe (Jane). Further, Mother failed to demonstrate that she was substantially prejudiced by DHS's alleged failure to assist her in complying with the court's service plan for reunification with Jane. As to Father-Appellant (Father), despite his contention that the Family Court of the First Circuit³ (the court) erred in concluding that he was incapable of providing a safe home for Jane, presently or in the reasonable future, the court's findings that he was incapable of doing so were not clearly erroneous. Therefore, we affirm the court's January 11, 2001 order, which granted custody of Jane to DHS, and the January 19, 2001 order denying reconsideration of that order.

I.

Both parents appeal separately from the January 11, 2001 final order awarding permanent custody of Jane to the DHS, as provided by HRS chapter 587, the Hawai`i Child Protective Act (CPA), and the January 19, 2001 order denying reconsideration by the court. Mother contends that the court erred in concluding that: 1) Mother is not willing and able to provide Jane with a safe home within a reasonable period of time; 2) DHS made reasonable and active efforts to reunify Jane with Mother; and 3) the ADA is not a defense to the CPA. Father argues that the court erred: 1) in concluding that Father was not willing to engage in court-ordered services and to provide a safe home for Jane; 2) in ruling that DHS exerted reasonable and active efforts to reunite the family; 3) in failing to order placement of Jane with a "calabash" cousin; and 4) in committing several procedural errors.

II.

Jane was born two months prematurely in Honolulu, Hawai`i on December 29, 1999. She suffers from a breathing problem and came to DHS's attention after she was hospitalized on May 19, 2000 for cyanotic episodes (bluish discoloration around the lip). According to Jane's guardian ad litem, Jane appeared very frightened and suspicious of people.

Mother suffers from a mental health disorder with reoccurring episodes of self-mutilation. Past incidents have included scratching her forearms, stabbing herself in the abdomen and neck, and hitting her head.

Father has been incarcerated since October 2000, and his parole was revoked on November 15, 2000. He is currently serving a felony term which has a maximum expiration date of February 7, 2005. The court noted that he was on trial for a second charge of assault involving an incident between Mother and Father, although the current status of that charge is not clear.

On May 22, 2000, according to the Kapiolani Hospital staff, Father dropped Jane to the floor and she was found "spinning" in wires that connected her to a machine. When the staff confronted Father, he allegedly became angry and left. Father contends that he was attempting to burp Jane and was unable to do so because the wires were tangled.

On the same day, upon leaving the hospital, Mother threatened to kill herself with a knife. Police were called and Mother was taken to a hospital. Upon admission to Queen's Medical Center, Mother tested positive for the use of crystal methamphetamine.

At this time, Mother admitted to DHS that she had been previously hospitalized for mental health treatment after similar suicide attempts. Following a prior hospitalization of Jane in January 2000, however, Mother refused mental health and public health nursing services offered by Kapiolani Hospital.

During this interview, DHS learned that Jane had been discharged from the hospital with an APNEA monitor⁴ in January 2000, but the parents had returned the monitor. The parents claimed that the monitor was defective because it gave off numerous false positive readings and they received permission from their doctor to discontinue use of the device. Subsequent to Jane's discharge on May 31, 2000, she was placed on an APNEA monitor and was kept on it until August 2000.

On May 24, 2000, the Honolulu Police Department assumed protective custody of Jane. Jane was immediately placed in temporary foster custody by DHS pursuant to HRS § 587-22(c) (1993 & Supp.2000). A petition was filed on May 30, 2000, alleging that the parents lacked the appropriate parenting skills to provide a safe home and that Mother's mental health problems and possible substance abuse threatened harm to Jane. Mother and Father were both served with a copy of the summons, petition, and a certified copy of the initial Safe Family Home Report and Interim Family Service (service plan).⁵ The service plan required the parents to participate in substance abuse assessment/treatment and random drug testing; the plan also mandated cooperation with DHS social workers.⁶

On June 1, 2000, a hearing was held regarding the petition. An attorney, retained by Father, appeared on the parents' behalf and requested a continuance so that the parents could be present at the hearing. The court continued the hearing date to June 8, 2000, and awarded temporary foster custody of Jane to DHS.

At the June 8, 2000 hearing, Mother and Father again failed to appear.⁷ Without objection, the court took jurisdiction over the matter, awarded foster custody of Jane to DHS, and ordered the service plan be implemented and psychological evaluations of both parents.⁸ The court also entered defaults against the parents and issued bench warrants for both of them. All parties were ordered to appear at a review hearing on August 21, 2000.

On June 15, 2000, warrants were issued, and Mother and Father were arrested the next day. They appeared before the court on June 19, 2000. Both expressed a willingness to cooperate with the DHS social worker. They agreed to undergo psychological evaluations and to comply with the service plan. Mother and Father were ordered to meet with the social worker as soon as possible and to attend a review hearing on August 21, 2000. Applications for court-appointed counsel were submitted, and new counsel were appointed for each parent by the court on June 26, 2000.

On August 21, 2000, the parents again failed to appear in court and defaults were entered. A service plan prepared by DHS on August 7, 2000 was ordered. Based on the parents' failure to attend the hearing, the presiding judge ordered DHS to file a motion for permanent custody of Jane. DHS timely moved for permanent custody of Jane to be transferred to it pursuant to HRS § 587-73 (1993 & Supp.2001). At the next hearing on September 21, 2000, Father again failed to attend and the matter was scheduled for trial on October 6, 2000. On October 6, 2000 and October 9, 2000, a permanent custody trial was held. All parties were present. After hearing all of the evidence, the court found by clear and convincing evidence, pursuant to HRS § 587-73, that neither Mother nor Father were presently willing and able to provide a safe family home for Jane, even with a service plan, and that it was not reasonably foreseeable that Mother would become willing and able to provide a safe family home for Jane. The court specifically rejected Mother's claims that, pursuant to the ADA, she suffered from a disability and, thus, more time and services should have been offered to her before her parental rights were terminated.

On the other hand, the court continued the motion for three months as to Father, because it believed that Father could potentially provide a safe family home if he was acquitted on assault charges relating to Mother and his parole was not revoked. The court ordered Father to contact DHS and Jane's guardian ad litem within forty-eight hours of his release from incarceration, provide certificates of completion of services to DHS without delay, and complete a psychological evaluation with a provider approved by DHS.

On January 11, 2001, during a permanent custody hearing, DHS offered evidence that Father's parole had been revoked and that Father would not appear before the paroling authority for parole consideration until November 2001. Father testified on his own behalf about his efforts to comply with the service plan while incarcerated. He also argued that he could provide for Jane by having her placed with his "calabash" cousin.

The court granted DHS's motion for permanent custody, concluding by clear and convincing evidence that it was not reasonably foreseeable that Father would become willing and able to provide a safe family home for Jane within a reasonable period of time. The court specifically noted Father's failure to participate in any service offered to him by DHS, before and after he was...