In re Interest of J.M.

• Decision Date: 27 July 2021
• Docket Number: NO. CAAP-20-0000748,CAAP-20-0000748
• Citation: 497 P.3d 140,150 Hawai‘i 125
• Parties: In the INTEREST OF J.M. and Z.M., Minors
• Court: Hawaii Court of Appeals

150 Hawai‘i 125

497 P.3d 140

In the INTEREST OF J.M. and Z.M., Minors

NO. CAAP-20-0000748

Intermediate Court of Appeals of Hawai‘i.

JULY 27, 2021

On the briefs:

Matthew Mannisto, for Mother-Appellant.

Gregory H. Meyers, (Meyers & Meyers LLC), Lihue, for Father-Appellant.

Russell K. Goo, Julio C. Herrera, Ian T. Tsuda, Patrick A. Pascual, Deputy Attorneys General, Family Law Division, State of Hawai‘i, for Petitioner-Appellee-Cross-Appellee THE DEPARTMENT OF HUMAN SERVICES.

GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.

OPINION OF THE COURT BY LEONARD, J.

In many ways, this termination of parental rights case follows an unfortunate, but familiar, pattern. Parents are both on drugs and are unable to provide their children with a safe family home. The State gets involved, but parents do not comply with mandatory drug testing, continue to test positive for drugs, otherwise fail to complete or delay getting through a substance abuse treatment program and other services, and skip court hearings. The parents' parental rights are then terminated and permanent custody of their children is awarded to the State.

No matter what circumstances bring parents before a court, however, indigent parents are guaranteed the right to court-appointed attorneys in termination proceedings under the due process clause of the Hawai‘i Constitution, as well as the Fourteenth Amendment of the United States Constitution. Here, we hold that such an attorney is essential throughout proceedings that could result in the termination of parental rights. As the Hawai‘i Supreme Court recently held, representation is so essential that failure to provide counsel to indigent parents facing possible termination of their parental rights is structural error that cannot be deemed harmless error. We further hold that, in this case, the discharge of the father's attorney during the pendency of these proceedings, prior to the family court's decision on a motion to terminate his parental rights, violated the father's due process rights and was structural error. Accordingly, the order that terminated his parental rights must be vacated, without the necessity of proving harmful error.

Appellant-Mother (Mother ) and Cross-Appellant-Father (Father ) appeal from the Decision and Order Terminating the Parental Rights of [Father] and [Mother] and Awarding Permanent Custody [HRS 587A] (Order Terminating Parental Rights ), filed on December 7, 2020, in the Family Court of the Fifth Circuit (Family Court ).¹ The Order Terminating Parental Rights terminated Mother and Father's parental rights to their two children, JM and ZM (Children ).

I. BACKGROUND

On April 16, 2019, Petitioner-Appellee-Cross-Appellee The Department of Human Services (DHS ) filed a Petition for Temporary Foster Custody for custody of the Children (Foster Custody Petition ). DHS alleged that the Children were subject to imminent harm, harm, or threatened harm because their parents' substance abuse affected their ability to supervise, protect, or care for the Children. The Foster Custody Petition was supported by a Safe Family Report and a Family Service Plan, both dated April 18, 2019, and received into evidence.

By orders of the Family Court dated April 22, 2019, and entered on April 24, 2019, separate attorneys were appointed to represent Mother and Father, effective as of April 18, 2019. Appointed counsel for Mother and Father were orally named at an April 18, 2019 hearing before the Family Court, and Parents requested a continuance to meet with their respective counsel, which was granted. The Children had been placed in police protective custody on April 11, 2019, DHS was temporarily awarded foster custody, and a May 2, 2019 return date was set.

In conjunction with the Foster Custody Petition and related Safe Family Report, DHS reported that it had received a report on August 14, 2018, that Mother, Father, and other adults in the home were using drugs in the presence of the Children and that one child had stepped on a burning piece of amphetamine in the home. After a preliminary investigation and interviews, a DHS social worker requested that Mother and Father complete urinalyses after the social worker's visit with them. They said that they could not go that day because they were busy with errands; they requested to complete drug testing later. Mother failed to show for drug tests on March 8, 14, and 22, 2019. Father failed to show for a drug test on March 8, 2019. Mother was unable to produce a urine sample on March 13 and 15, 2019. Father tested positive for methamphetamine and amphetamine on March 13, 2019. On March 29, 2019, both parents failed to meet with DHS and did not maintain contact with DHS. DHS further reported that parents had heated verbal altercations and that the Children hide under the blankets when the arguments occur, that parents were evasive and refused to allow DHS access to the family home, and that on April 11, 2019, the police were called to assist DHS to assess the Children's safety. As noted, the Children were then placed in police protective custody.

Subsequent to the filing of the Foster Custody Petition, Mother and Father were directed in the initial Family Service Plan to participate in random drug testing. On May 2, 2019, it was reported that Mother tested positive for methamphetamine and Father admitted to using methamphetamine and tested positive for "OXY," which he attributed to prescribed Percocet. On May 16, 2019, it was reported that Mother tested positive for methamphetamine. On June 4, 2019, it was reported that Mother and Father did not show up for drug tests on April 22, May 2, May 6, May 14, May 23, and May 28, 2019. A no show is considered to be the same as a positive test.

On June 18, 2019, the Family Court entered an Order Establishing Jurisdiction and Awarding Foster Custody [HRS 587A] in which the Family Court awarded DHS foster custody of the Children as of June 13, 2019.

On July 3, 2019, it was reported Mother and Father did not show up for drug tests on June 3, 13, 18, and 27, 2019.

A July 16, 2019 assessment of Father stated he had a Moderate Methamphetamine Use Disorder and it was recommended he complete Intensive Outpatient Treatment and Aftercare.

On July 19, 2019, the Family Court entered an Order Establishing a Family Service Plan [HRS 587A] which ordered parents to follow a service plan dated April 18, 2019 (April 2019 Service Plan ). The April 2019 Service Plan required Mother and Father to participate in substance abuse treatment and management, including random drug tests, a psychological evaluation and any recommended services, including parenting education.

On August 7, 2019, it was reported that Father did not show up for drug tests on July 2, 8, 16, 25, and 30, 2019, that Mother did not show up for drug tests on July 2 and 30, 2019, and that Mother tested positive for methamphetamine and amphetamine on July 11, 2019.

Father's August 15, 2019 Clinical Psychological Evaluation stated that Father believed removal of the Children was unwarranted and parents' drug use away from the Children was less of a concern than if it was done in the home. The evaluation stated that Father's "treatment prognosis is guarded due to his ambivalence toward addressing his drug issue. Until he can genuinely embrace the need to change and commit to a different way of living, he will not be in a position to improve his own functioning as a productive citizen, supportive partner, or a protective, responsible parent to his [Children]." It was recommended that Father begin substance abuse treatment, random drug screens, a support group for substance users, parent education after achieving sobriety, and couples counseling with Mother.

Mother's August 15, 2019 Clinical Psychological Evaluation stated that Mother believed that the removal of the Children was unwarranted and parents' drug use away from the Children was less of a concern than if it was done in the home. Mother admitted to cannabis and methamphetamine use and had not yet taken the first step toward recovery. Mother's "treatment prognosis is guarded due to her ambivalence toward addressing her drug issue. Until she can genuinely embrace the need to change and commit to a different way of living, she will not be in a position to improve her functioning as a productive citizen, supportive partner, or a protective, responsible parent to her children." It was recommended that Mother engage in substance abuse assessment and treatment recommendations, random drug screens, a support group for substance users, parent education after achieving sobriety, and couples counseling with Father.

On September 23, 2019, it was reported that Mother and Father did now show up to drug tests on August 6, 15, 19, and 27, 2019.

On October 7, 2019, it was reported that Mother and Father did not show up to drug tests on September 3, 10, and 19, 2019, and that both parents tested positive for methamphetamine and amphetamine on September 24, 2019.

On October 8, 2019, the Family Court entered an order noting that Mother and Father failed to appear for an October 3, 2019 status hearing, although their attorneys were present, and Mother and Father were defaulted for their non-appearance.

On November 7, 2019, it was reported that Father did not show up for drug tests on October 1, 10, 15, 21, and 29, 2019. Mother did not show up for drug tests on October 1, 10, 21, and 29, 2019, and tested positive for methamphetamine and amphetamine on October 15, 2019.

On November 27, 2019, at the conclusion of a Periodic Review Hearing, the Family Court entered an Order Continuing Foster Custody [HRS 587A], which ordered parents to follow a service plan, dated November 21, 2019 (November 2019 Service Plan ). The November 2019 Service Plan required parents to participate in the same services as the April 2019 Service Plan.

On December 2, 2019, it was reported that Mother and Father did not show up for drug tests on November 4, 12, and 26, 2019, and on November 21,...