In re Interest of TC

• Decision Date: 20 December 2021
• Docket Number: NO. CAAP-21-0000053,CAAP-21-0000053
• Citation: 500 P.3d 513 (Table),150 Hawai‘i 328
• Parties: In the INTEREST OF TC and RC
• Court: Hawaii Court of Appeals

150 Hawai‘i 328

500 P.3d 513 (Table)

In the INTEREST OF TC and RC

NO. CAAP-21-0000053

Intermediate Court of Appeals of Hawai‘i.

December 20, 2021

On the briefs:

Michael S. Zola, for Appellant Mother

Charles H. McCreary IV, Patrick A. Pascual, Julio C. Herrera, Erin K.S. Torres, Deputy Attorney General, for Petitioner-Appellee

(By: Ginoza, Chief Judge, Hiraoka and McCullen, JJ.)

SUMMARY DISPOSITION ORDER

Appellant Mother (Mother ) appeals from the Order Related to Continued Second Permanency Hearing, filed on January 8, 2021 (1/8/21 Order Re: Second Permanency Hearing ) in the Family Court of the Third Circuit (Family Court ),¹ related to Mother's two children (Children )

The State of Hawai‘i, Department of Human Services (DHS ) contends that this court lacks appellate jurisdiction because the 1/8/21 Order Re: Second Permanency Hearing is not an appealable order. Thus, as a threshold matter, we address our jurisdiction in this appeal.

Under Hawai‘i Revised Statutes (HRS ) § 571-54 (2018), "appeals in family court cases, as in other civil cases, may be taken only from (1) a final judgment, order, or decree, ... or (2) a certified interlocutory order." In re Doe Children, 96 Hawai‘i 272, 283, 30 P.3d 878, 889 (2001) (citations omitted). " ‘Final order’ means an order ending the proceedings, leaving nothing further to be accomplished." Familian NW., Inc. v. Cent. Pac. Boiler & Piping, Ltd., 68 Haw. 368, 370, 714 P.2d 936, 937 (1986) (citation omitted). "However, it is widely acknowledged that a final judgment or decree is not necessarily the last decision of a case. What determines the finality of an order or decree is the nature and effect of the order or decree." In re Doe, 77 Hawai‘i 109, 114, 883 P.2d 30, 35 (1994) (internal quotation marks, emphasis, and citation omitted).

"The very nature of a family court chapter 587 proceeding entails an ongoing case which does not result in a ‘final’ order, as that term is generally defined, because, under chapter 587, the family court retains continuing jurisdiction over the case in order to prevent future harm or threatened harm to a child." In re Doe Children, 96 Hawai‘i at 283, 30 P.3d at 889 (brackets and citations omitted). Despite the Family Court's continuing jurisdiction over a child, "[i]mmediate review is necessary because parents have fundamental liberty interests in the care, custody, and management of the child." In re Doe, 77 Hawai‘i at 115, 883 P.2d at 36 (internal quotation marks, brackets, and citations omitted). The Hawai‘i Supreme Court thus recognized favorably that "an infringement upon parental custody rights is an appealable decision even though the requisite finality normally required for appeals is lacking[,]" and held that "fundamental liberty interests in the custody and care of [a mother's] child compel appellate review even though the degree of finality normally required for an appeal has not been met." Id. at 114-15, 883 P.2d at 35-36 (internal quotation marks omitted) (emphasis added).

At a permanency hearing, the Family Court is required to make findings as to certain issues and the Family Court also shall order: a child's reunification with a parent or parents; the child's continued placement in foster care under certain circumstances; or a permanent plan with a goal as specified by statute. See HRS § 587A-31 (2018).²

Here, DHS filed a Permanent Plan on August 19, 2020, recommending continued foster care until a determination whether the Children could be reunified with a suitable and appropriate parent; and if reunification with a parent was not possible, DHS recommended placement with paternal grandparents. On September 23, 2020, the Family Court issued its Orders Related To First Permanency Hearing in which it ordered the "proper concurrent permanency plan is reunification or adoption."

Subsequently, a Permanent Plan filed by DHS on November 25, 2020, noted that on November 10, 2020, the Family Court approved foster care placement of the Children with their paternal grandparents in Idaho and thus "DHS recommends the proposed revised case goals and objectives be reunification with Father" (emphasis added).

After a hearing on December 29, 2020, the Family Court entered the 1/8/21 Order Re: Second Permanency Hearing, which is the subject of this appeal, and ordered among other things: that foster custody be continued; and that the proper permanency plan was reunification. Given DHS's most recent permanent plan, which had been filed and then admitted into evidence, the effect of this order was that the revised permanency plan approved by the Family Court now called for reunification with Father who resided in Idaho. The 1/8/21 Order Re: Second Permanency Hearing also found that the projected date for reunification was February 2021. Further, by the time of this order, the Children had been relocated out-of-state to Idaho and placed with their paternal grandparents. The order found that this out-of-state placement was safe, appropriate and in the best interest of the Children.

Given these circumstances, we conclude the 1/8/21 Order Re: Second Permanency Hearing infringed upon Mother's parental custody rights and is an appealable order. Id. at 115, 883 P.2d at 36 (citing In re Yavapai Cty. Juvenile Action No. J-8545, 680 P.2d 146, 150-51 (Ariz. 1984) (en banc) ("A parent denied and redenied control over his or her children must have the right to appeal the initial and subsequent denials.")). We thus have jurisdiction to review the merits of this appeal.

On appeal, Mother contends the Family Court erred by (1) refusing to provide Mother with an opportunity to have an evidentiary hearing on a permanent placement plan conducted pursuant to HRS § 587A-31, (2) failing to ensure that her Children in foster custody were provided proper notice of court hearings and by failing to appoint an attorney for the Children to protect their rights, (3) admitting reports into evidence and not giving Mother an opportunity to cross-examine the preparers of the reports, (4) finding the Children's current placement is safe and appropriate, (5) finding Petitioner-Appellee DHS made reasonable efforts to finalize a permanency plan, (6) finding Father made progress and Mother made some progress toward resolving the problems that necessitated placement (7) finding "each term, condition, and consequence of the Interim Family Service Plan dated April 23, 2019 has been explained to and is understood by the children's mother to be continued," (8) finding the Children have been consulted, in an age appropriate manner, about the proposed permanency and/or transition goal, and (9) finding "[t]he out-of-state placement with the children's paternal grandparents proposed by DHS is safe, appropriate, and in the best interest of the children."

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Mother's points of error as follows:

Points of error (1) and (3): Mother contends the Family Court erred by refusing to provide her with an opportunity to have an evidentiary hearing on a permanent placement plan. Mother asserts HRS § 587A-31 requires the Family Court to hold a hearing and make findings of fact. Thus, Mother argues the Family Court should have received and properly considered sufficient information before making such findings, including providing an opportunity for all parties to present evidence on issues related to the required findings, and the failure to allow Mother to testify and present evidence was prejudicial and a violation of due process.

Mother has a fundamental liberty interest in the right of care, custody, and control of the Children, and thus "the State may not deprive her of this interest without providing a fair procedure for deprivation." Doe v. Doe, 120 Hawai‘i 149, 168, 202 P.3d 610, 629 (App. 2009) (citations omitted). "At its core, procedural due process of law requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest." Id. (emphasis added)(quoting State v. Bani, 97 Hawai‘i 285, 293, 36 P.3d 1255, 1263 (2001) ).

At a permanency hearing, the Family Court is required to make written findings as specified by statute. See HRS § 587A-31(c). Pursuant to HRS § 587A-18 (2018), DHS is required to submit certain reports to the Family Court in Child Protective Act proceedings such as this case, including reports prior to periodic review hearings and permanency hearings. HRS § 587A-18(d) provides that "[a] written report submitted pursuant to this section shall be admissible and relied upon to the extent of its probative value in any proceeding under this chapter, subject to the right of any party to examine or cross-examine the preparer of the report." (Emphasis added). A permanency hearing is a proceeding within the meaning of HRS Chapter 587A and thus a party to the proceeding must be given the right to examine or cross-examine the preparer of reports admitted into evidence pursuant to HRS § 587A-18. Examination regarding such reports is particularly relevant when the reports are the bases to support findings required by HRS § 587A-31.

At the end of a hearing on November 10, 2020, at which the Family Court ordered the Children could be placed with their paternal grandparents in Idaho, the parties discussed scheduling the second permanency hearing. Mother asserted that the December 8, 2020 permanency hearing should be an evidentiary hearing. DHS asserted, however, that the Family Court had a practice that permanency hearings were not contested evidentiary hearings and that "[t]he only evidence presented would be the permanency plan and any reports submitted in preparation for the [permanency] hearing." DHS's position thus made clear that it intended to rely upon reports admitted into evidence for the Family Court to make the required findings...