In re Interest of T.M.
Decision Date | 06 January 2014 |
Docket Number | No. SCWC–12–0000521.,SCWC–12–0000521. |
Citation | 131 Hawai'i 419,319 P.3d 338 |
Court | Hawaii Supreme Court |
Parties | In the Interest of T.M. |
Benjamin E. Lowenthal, Wailuku, for petitioner.
Nolan Chock, (with Mary Anne Magnier on the briefs), Honolulu, for respondent.
We hold that the failure of the Family Court of the Third Circuit1 (the court) to appoint counsel for Petitioner/Mother–Appellant Jane Doe (Petitioner) until nearly nineteen months after Respondent–Appellee Department of Human Services (DHS) filed a Petition for Temporary Foster Custody over Petitioner's son, T.M. constituted an abuse of discretion under Hawai‘'i Revised Statutes (HRS) § 587–342 (2006) and § 587A–173 (Supp. 2012) which necessitates vacating the court's April 17, 2012 Order " Terminating [Petitioner's] Parental Rights and Awarding Permanent Custody" to DHS.4 We recognize that parents have a substantive liberty interest in the care, custody, and control of their children that is protected by the due process clause of article I, section 5 of the Hawai‘i Constitution.5 In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002). Therefore, we additionally hold that parents have a constitutional right to counsel under article I, section 5 in parental termination proceedings and that from and after the filing date of this opinion, courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.
For the reasons set forth herein, the aforesaid April 17, 2013 Order of the Court, the "Findings of Fact [ (findings) ] and Conclusions of Law [ (conclusions) ] re [Termination of Parental Rights (TPR) ] Hearing" entered on May 3, 2012, and the July 26, 2013 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its June 28, 2013 Summary Disposition Order affirming the court's order are vacated, and the case is remanded for a new hearing.
T.M. was born to Petitioner on June 8, 2009, when Petitioner was fifteen years old. In August, 2009, Petitioner was "diagnosed with Psychotic Disorder
, Bipolar [Disorder], Panic Disorder, and Adjustment Disorder with Mixed Disturbance Emotions/Conduct." DHS filed two Petitions for Temporary Foster Custody, one over Petitioner and one over T.M., on January 6, 2010.
On January 7, 2010, the court held a hearing on the DHS petition. At the hearing, the court advised both Petitioner's parents and Petitioner herself of the salutary purpose of having a court-appointed attorney:
(Emphases added.) The court stated it would attempt to find one person to act both as guardian ad litem and as an attorney for Petitioner but suggested that having separate persons act as a guardian ad litem and as an attorney might be necessary:
Now, [Petitioner], her situation is a little different, and that is because she's a minor under the law, she's entitled to a guardian ad litem. At the same time she is a mother, a parent, and so she's entitled to an attorney. I'm going to try my best to find a person that can act in both responsibilities. There may be, though, the situation where she will have both an attorney and a guardian ad litem, two people, because what the guardian ad litem may feel would be in her best interest may not be what she would like. So that's why she would need an attorney.
(Emphasis added.) The record does not indicate that Petitioner submitted an application for court-appointed counsel at that point.
Following the hearing, the court approved court-appointed counsel for Petitioner's mother and T.M.'s father.6 However, the court did not appoint counsel for Petitioner. Instead, the court apparently had Stephanie St. John (St. John) act as Petitioner's guardian ad litem. At the next hearing, on January 14, 2010, the court suggested that St. John was serving both as Petitioner's guardian ad litem and Petitioner's attorney:7
(Emphases added.) But, as indicated above, St. John did not confirm that she was serving as Petitioner's attorney. Instead, St. John told the court that there might be a conflict in serving in both capacities and she would "speak with [Petitioner]" to determine if Petitioner desired to have "a separate attorney".
According to finding 7 of the court's May 3, 2013 findings and conclusions, (Emphasis in original.)
A service plan hearing8 was held on March 3, 2010. The Family Service Plan established the "initial goal" as "[m]aintain[ing] [T.M.] in placement or in a safe family home with his mother, [Petitioner]," and the "reunification of [Petitioner] with her mother, or her father and his fiancé." The "final goal" was to The family plan stated that the "target date" to "maintain [Petitioner] and her son, [T.M.] in a safe family home without the need for further DHS intervention" was February 2011.
The Plan provisions required Petitioner to "continue to participate in services provided by [the Department of Health, Family Guidance Center], including compliance with any prescribed medication," and "to make efforts to complete [her] education via attendance at school, work on correspondence courses, and participation in the [ ] Grads Program."9 The Plan was to "remain in effect until August 23, 2010, or further order of the court." The Plan also set forth "consequences," which explained to Petitioner that
However, no provision of the Plan specified the "reasonable period of time" in which Petitioner was required to provide T.M. with a safe family home. The Ohana conference report stated that "if the parents are unable to provide the children with a safe family home within a reasonable period of time up to one year, even with a service plan, parental rights may be subject to termination." However, at the time the service plan was filed, although HRS § 587–72 (2006) did allow DHS to file a motion for a permanent plan hearing if the child was outside the family home for twelve consecutive months, parents could prevail at that hearing by demonstrating that it was "reasonably foreseeable" that they would be able to provide the child with a safe family home in "a reasonable period of time which shall not exceed two years from the date upon which the child was first placed under foster custody by the court." HRS § 587–73 (2006) (emphasis added). This two-year requirement is also reflected in present Hawai‘i law. HRS § 587A–33(a)(2) (Supp.2012).
Petitioner was apparently found to have possessed marijuana on November 30, 2010. The terms of her probation included the requirement that she "shall not consume or possess any alcoholic beverages, illegal drugs, non-prescribed prescription drugs, or drug paraphernalia."
A combined second periodic review hearing and permanency hearing10 was held on January 26, 2011. At a permanency hearing, "[t]he court shall review the status of the case to determine whether the child is receiving appropriate services and care, that case plans are being properly implemented, and that activities are directed toward a permanent placement for the child." HRS § 587A–31(b). Under HRS § 587A–31, one of the options at a permanency hearing is for the court to order "the child's continued placement in foster care" if, inter alia, "[r]eunification is expected to occur within a time frame that is consistent with the developmental needs of the child." HRS § 587A–31(d).
On January 21, 2011, DHS formulated a revised family service plan. The revised plan added the provision that [Petitioner] "[f]ollow...
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Case Notes
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