In re Doe, No. 23663

CourtHawaii Supreme Court
Writing for the CourtMOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.
Citation57 P.3d 447,99 Haw. 522
Decision Date08 November 2002
Docket Number No. 23663, No. 23664.
PartiesIn the Interest of Jane DOE, Born on December 15, 1982; John Doe, Born on August 24, 1984. In the Interest of John DOE, Born on October 20, 1991; John Doe, Born on November 24, 1992.

57 P.3d 447
99 Haw.
522

In the Interest of Jane DOE, Born on December 15, 1982; John Doe, Born on August 24, 1984.
In the Interest of John DOE, Born on October 20, 1991; John Doe, Born on November 24, 1992

Nos. 23663, 23664.

Supreme Court of Hawai`i.

November 8, 2002.


57 P.3d 450
Lloyd Van de Car, on the briefs, for mother-appellant

57 P.3d 451
Brian J. De Lima and David H. Lawton (Crudele, De Lima & Shiroma), on the briefs, Hilo, for father-appellant

Marlene Q.F. Young, Mary Anne Magnier and Jay K. Goss, Deputy Attorneys General, on the briefs, for Department of Human Services-Appellee.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that parents who are in need of an interpreter because of their inability to understand English are entitled to the assistance of one at any family court hearing in which their parental rights are substantially affected. However, under the circumstances of this case, Appellant-Mother1 (Mother) has failed to demonstrate her "need of an interpreter" and the manner, if any, whereby she was substantially prejudiced by the absence of an interpreter at certain proceedings. Moreover, Appellee-Department of Human Services (DHS) established by a preponderance of the evidence that Mother's children were harmed by her or that she presented a threat of harm to them. As to Father, despite his contention that the Family Court of the Third Circuit2 (the court) inappropriately considered his behavior outside of Hawai`i, the court's findings that he harmed his children and posed a threat to them can be sustained on the basis of Father's actions in Hawai`i. Therefore, we hold that the court properly exercised jurisdiction in the instant case. We affirm the court's May 22, 2000 decision and order which granted foster custody of Jane Doe (born 12/15/82), John Doe 1 (born 8/24/84), John Doe 2 (born 10/20/91), and John Doe 3 (born 11/24/92) (collectively, Children) to DHS and the July 31, 2000 order denying parents' motion for reconsideration.

I.

All four children, who are the subject of the proceedings, are the natural children of Father. Mother is the natural mother of only John Doe 2 and John Doe 3. Jane Doe and John Doe 1 are now eighteen years old. Family court jurisdiction over them has expired because they are not less than eighteen years of age. See Hawai`i Revised Statutes (HRS) §§ 587-2 (1993) and -11 (1993).3 Therefore, all appeals regarding Jane Doe's and John Doe's foster custody status are now moot.

DHS received a referral on August 6, 1999, alleging that Father had sexually abused Jane Doe and had physically abused the Children. On August 19, 1999, a detective and DHS social worker interviewed Mother and Father. John Doe 2 and John Doe 3 were taken into protective custody after the interview, but John Doe 1 remained in the family home. On August 23, 1999, DHS filed a Petition for Temporary Foster Custody. The first hearing for this case was held on August 25, 1999, at which time the court awarded temporary foster custody to DHS and set the case for a return date of September 2, 1999.

Mother is a native of the Marshall Islands, and her primary language is Marshallese. At the return date hearing on September 2, 1999, the first hearing at which he appeared, Mother's attorney asked for an interpreter "because [he didn't] feel confident that [Mother could] fully understand" the proceedings.

57 P.3d 452
At a continued status conference held on October 13, 1999, Mother's attorney again explained that "it's becoming increasingly obvious that she really needs an interpreter." On November 1, 1999, the first day of the combined adjudicatory/disposition hearing,4 an interpreter was present during Mother's testimony. The court related that an interpreter would assist Mother
not because she cannot communicate about everyday matters but because the particular nature of these proceedings involves the use of unusual language, legal concepts that are difficult to sometimes understand and rather specialized English that the Court feels [Mother] probably does not understand.

The court made its decision after questioning Mother on the record without an interpreter. That afternoon, the court chose to handle "housekeeping" matters rather than take further testimony from Mother because of the interpreter's absence. At the close of the hearing, the court told Mother's attorney, "I should leave you in charge. You certainly did better than everybody else [at obtaining an interpreter]," but then asked the bailiff to obtain an interpreter for the next hearing.

At the continuation of the disposition hearing on November 2, 1999, an interpreter was not present. Mother's attorney again requested an interpreter. After a recess, however, he informed the court that Mother was willing to proceed without an interpreter for that day on the condition she not testify.5 The court did not question Mother regarding this procedure, but rather recounted its efforts to secure a Marshallese interpreter, explaining that, "[b]ased on the Court's observation of [M]other during her testimony, I don't think that it will be prejudicial for her to continue the trial with other witnesses. I think she comprehends the English language marginally and can understand the proceeding." (Emphasis added.) The November 2, 1999 hearing continued with the testimony of Jane Doe's foster parent, the foster parent of John Doe 2 and John Doe 3, and the DHS social worker assigned to the case. Jane Doe's foster mother testified about several conversations she had with Mother,6 each of which took place in English. Jane Doe's foster mother, who does not speak Marshallese, explained, "[Mother] can speak English. . . . I can understand her and we have conversations for hours. She can speak. She may have a heavy accent, but that's not a problem." At the close of the hearing, the court conducted the following colloquy with Mother's attorney:

THE COURT: . . . We have yet to secure a Court[-] certified interpreter. We have a call in to one on Oahu.
[Mother's attorney], what I want to do is tender the question to you, will it be satisfactory to have the interpreter only for your client's testimony or do you wish to
57 P.3d 453
have the interpreter for the remainder of the trial?
Or put it another way, how have you managed to get along using the process that we used today?
[MOTHER'S ATTORNEY]: Your Honor, may I just confer with [Mother]?
THE COURT: Yes. Sure.

(Off-the-record discussion.)

[MOTHER'S ATTORNEY]: Your Honor, my client indicated that her preference is to have an interpreter here all the time, if that can be managed. That's her first choice, Your Honor.
THE COURT: Uh-huh. Well, I can attempt to arrange that, but I cannot guarantee that.
I can certainly—it's pretty obvious to me that she needs an interpreter for her testimony. And I can certainly—we can arrange a schedule to accommodate that . . .
If we cannot secure an interpreter, [Mother's attorney], does your client wish to go ahead and proceed with other witnesses or does she want to postpone the date and have us wait until we can find one?

(Off-the-record discussion.)

[MOTHER'S ATTORNEY]: We can proceed, Your Honor.
THE COURT: Okay. . . . I want the record to be clear. We have a central master list of court interpreters state wide. And we're calling all the interpreters we can find that speak Marshallese.
[MOTHER'S ATTORNEY]: Okay. Your Honor, at what point in time—should I make my own efforts or am I—
THE COURT: Well, given the way your efforts have worked out, I'm a little leery. . .
[MOTHER'S ATTORNEY]: I would prefer the Court get its own interpreter.
THE COURT: I think that might be better.

(Emphases added.)

On December 17, 1999, Father called Mother to the stand without an interpreter present. Before her testimony, however, the deputy attorney general representing DHS inquired of the court as to whether the court was "going to have problems with an interpreter." A recess was taken and, upon resuming the hearing, the court stated, "We're going to call [Mother]," to which Mother's attorney responded, "Yes, Your Honor." The direct examination proceeded with difficulty initially:

[FATHER'S ATTORNEY]: [Mother], since the children were removed from your home the second time, how many visits have you had with the children?
A: I don't understand. I don't understand.
[DEPUTY ATTORNEY GENERAL]: Judge, that's my problem. I mentioned to counsel off the record that we might have some problems with interpretation—I'm sorry—not having an interpreter here.
And he assured me they were simple questions, but even with simple questions, we have some difficulty.
[THE COURT]: [Father's attorney]?
[FATHER'S ATTORNEY]: If I can try with a few questions.
[THE COURT]: We'll try.
[FATHER'S ATTORNEY]: If we can't we can't.
[THE COURT]: If you do not understand, that's okay.
[MOTHER]: Okay.
[THE COURT]: Okay? Let us know. We will try to ask again, okay?
[MOTHER]: Okay.
[THE COURT]: Okay.

(Emphases added.) The remainder of the hearing on December 17 was completed without the aid of an interpreter. The resulting examination proceeded smoothly. For example, Mother testified as follows:

Q [FATHER'S ATTORNEY]. Did you have a visit with [John Doe 3] and [John Doe 2] yesterday?
A. [MOTHER] Yes.
Q. Was it a good visit?
A. It's good.
Q. Did the children ask about [Father]?
A. Yes.
57 P.3d 454
Q. What did they ask?
A. They said to me, where is [Father], mommy? And I said, you know, [Father], he work, office, working. That's all they said to me yesterday.
Q. Could you tell if they were happy or sad that [Father] wasn't there?
[DEPUTY ATTORNEY GENERAL]: Your Honor, I know—objection, first of all. I know we're kind of taking some liberties here but, you know, that's a very leading question, and I object to the leading.
THE COURT: Overruled. Ask it again.
[FATHER'S ATTORNEY]: Okay.
....
Q. Did you understand the question, could you tell if the children were
...

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68 practice notes
  • Cox v. Cox, SCWC-12-0000762
    • United States
    • Supreme Court of Hawai'i
    • August 16, 2016
    ...the care, custody, and control of their children,’ independent of the United States Constitution” (quoting In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002) )). Although this fundamental right is not involved here because the parties did not have minor children at the time this divorc......
  • IN RE RGB, No. 28582.
    • United States
    • Hawaii Supreme Court
    • April 1, 2010
    ...Constitution affords parents a due process right to counsel in all termination proceedings.17 However, in In re Doe, 99 Hawai`i 522, 533, 57 P.3d 447, 458 (2002) (citation omitted), we held that article 1, section 5 of the Hawai`i Constitution provides parents a "substantive liberty interes......
  • 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 law [.]”). This guarantee encompasses two components of due process: procedural and substantive. In re Doe, 99 Hawai‘i 522, 533 n. 14, 57 P.3d 447, 458 n. 14 (2002). We address each in turn. Father alleges that the Family Court's grant of the TRO infringed on his constitutional right to ......
  • State v. Matavale, No. 27476.
    • United States
    • Supreme Court of Hawai'i
    • August 14, 2007
    ...our analysis with the well-established principle that "parental rights are of constitutional dimension." In re Doe, 99 Hawai`i 522, 532, 57 P.3d 447, 457 (2002). A parent's right to direct his or her child's upbringing has found protection in both the federal and Hawaii constitutions. See i......
  • Request a trial to view additional results
68 cases
  • Cox v. Cox, SCWC-12-0000762
    • United States
    • Supreme Court of Hawai'i
    • August 16, 2016
    ...the care, custody, and control of their children,’ independent of the United States Constitution” (quoting In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002) )). Although this fundamental right is not involved here because the parties did not have minor children at the time this divorc......
  • IN RE RGB, No. 28582.
    • United States
    • Hawaii Supreme Court
    • April 1, 2010
    ...Constitution affords parents a due process right to counsel in all termination proceedings.17 However, in In re Doe, 99 Hawai`i 522, 533, 57 P.3d 447, 458 (2002) (citation omitted), we held that article 1, section 5 of the Hawai`i Constitution provides parents a "substantive liberty interes......
  • 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 law [.]”). This guarantee encompasses two components of due process: procedural and substantive. In re Doe, 99 Hawai‘i 522, 533 n. 14, 57 P.3d 447, 458 n. 14 (2002). We address each in turn. Father alleges that the Family Court's grant of the TRO infringed on his constitutional right to ......
  • State v. Matavale, No. 27476.
    • United States
    • Supreme Court of Hawai'i
    • August 14, 2007
    ...our analysis with the well-established principle that "parental rights are of constitutional dimension." In re Doe, 99 Hawai`i 522, 532, 57 P.3d 447, 457 (2002). A parent's right to direct his or her child's upbringing has found protection in both the federal and Hawaii constitutions. See i......
  • Request a trial to view additional results

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