In re J.H.
| Citation | 502 P.3d 1025 (Table) |
| Decision Date | 31 January 2022 |
| Docket Number | CAAP-21-0000316 |
| Parties | In the INTEREST OF J.H. |
| Court | Court of Appeals of Hawai'i |
On the briefs:
Herbert Y. Hamada, for Father-Appellant.
Tae Chin Kim, for Cross-Appellant/Mother.
Abigail S. Dunn Apana, Julio C. Herrera, Patrick A. Pascual, Regina Anne M. Shimada, Deputy Attorneys General, for Petitioner-Appellee The Department of Human Services.
Michelle K. Moorhead, (Legal Aid Society of Hawai‘i) Guardian Ad Litem.
(
Appellant Father (Father ) and Cross-Appellant Mother (Mother ) appeal from the Order Terminating Parental Rights filed on April 28, 2021, in the Family Court of the First Circuit (Family Court ).1 Father's and Mother's parental rights to their child (J.H. ) were terminated.
On appeal, Father challenges Findings of Fact (FOFs ) 9, 29, 38, 46, 49, 69, 135, 141, 151-54, 164-65, and 177. Father contends that Petitioner-Appellee the State of Hawai‘i, Department of Human Services (DHS ), failed to provide him with a reasonable opportunity to reunify by denying any form of visitation with J.H., the Family Court violated his due process rights by denying his request to delay the termination of parental rights proceeding until after his trial on alleged sexual abuse of his minor step-daughter (SA ) was concluded, and his due process rights were violated when his court appointed attorney was discharged for a period of time during the proceeding.
On cross appeal, Mother challenges FOFs 149 and 164 and Conclusions of Law (COLS ) 16 and 17. Mother contends that there was not clear and convincing evidence that she was not presently willing and able to provide a safe family home or that it was reasonably foreseeable she would become willing and able to provide a safe family home, even with the assistance of a service plan, within a reasonable period of time not to exceed two years from the date J.H. entered foster care, DHS failed to provide a reasonable effort to provide a service plan when it failed to rerefer her for a psychological evaluation, and the Family Court violated her due process right by denying her motion for a continuance due to her hospitalization.
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 Father's and Mother's points of error as follows:
"DHS is under an obligation to provide a reasonable opportunity to parents through a service plan to reunify the family." In re Doe, 100 Hawai‘i 335, 343, 60 P.3d 285, 293 (2002) (). The Family Service Plan stated that Father would not be permitted to have visitation with J.H. until it was deemed appropriate and approved by Father's sex offender treatment therapist and in consultation with the Guardian Ad Litem (GAL ). Father does not contest that he refused to participate in any of the services in the Family Service Plan, including sex offender treatment. Thus, Father did not have a sex offender treatment therapist approve visitation. At no time did Father challenge the Family Service Plan. "[A] claim for additional services and accommodations must be timely made." Id. at 344, 60 P.3d at 294. Father did not raise the issue of lack of visitation until trial. Under these circumstances, we cannot conclude that Father's contentions regarding visitation have merit. See id.
Father further contends that the Family Court violated his due process rights by denying his request to delay the termination of parental rights proceeding until after his trial on alleged sexual abuse of his minor step-daughter was concluded. The United States Constitution "does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings." SEC & Exch. Comm'n v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980) (citing Baxter v. Palmigiano, 425 U.S. 308 (1976) ). Father cites no authority to the contrary and on appeal, Father provides no specific reason or argument why the termination of parental rights proceeding should have been stayed until his criminal trial was concluded. Therefore, we cannot conclude that this argument has merit.
Finally, Father contends that his due process rights were violated when his court-appointed attorney was discharged after he was defaulted for failing to appear at the hearing where DHS was awarded foster custody of J.H.
In In re T.M., 131 Hawai‘i 419, 436, 319 P.3d 338, 355 (2014), the Hawai‘i Supreme Court held: "We direct that upon the filing date of this opinion, trial courts must appoint counsel for indigent parents upon the granting of a petition to DHS for temporary foster custody of their children."
In In re L.I., 149 Hawai‘i 118, 122, 482 P.3d 1079, 1083 (2021), the supreme court clarified "that In re T.M. mandated that family courts appoint counsel for indigent parents when DHS files a petition asserting custody over a child." The supreme court further held:
The failure to timely appoint counsel is structural error which, under State v. Loher, requires vacatur without the necessity of proving harmful error. 140 Hawai‘i 205, 222, 398 P.3d 794, 811 (2017). The family court's failure to appoint Mother counsel when DHS filed its petition for family supervision was structural error and cannot be deemed harmless.
Id. at 123, 482 P.3d at 1084 (footnote omitted). Accordingly, the supreme court vacated the judge in that case and remanded "for further proceedings consistent with this opinion and considering the best interests of the children." Id.
The supreme reiterated and explained its prior ruling as follows:
Id. at 121-22, 482 P.3d at 1082-83 (some emphasis added; footnotes omitted).
In a recent case, this court similarly observed:
In In re L.I., the Hawai‘i Supreme Court held that family courts must appoint counsel for indigent parents even earlier (where applicable), when DHS files a petition for family supervision, because their parental rights are already substantially affected at that point. 149 Hawai‘i at 122, 482 P.3d at 1083 (citation omitted). The court further held that the failure to do so was structural error, requiring vacatur without the necessity of proving harmful error . Id. at 122-23, 482 P.3d at 1083-84. Citing In re T.M., the court noted that "an attorney is essential to protect an indigent parent's liberty interest in the care, custody and control of his or her children." Id. at 122, 482 P.3d at 1083 (citation and internal quotation marks omitted). The gravamen of this decision, as well as its predecessors, is that such an attorney is essential throughout proceedings that could result in the termination of parental rights, and we so hold. 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 . See id. at 122-23, 482 P.3d at 1083-84 (citation omitted).
In the Interest of J.M., 150 Hawai‘i 125, 142, 497 P.3d 140, 157 (App. 2021) (emphasis added).
Although we noted various ways that the father in In re J.M. may have benefitted from continuous representation, we recognized that those potential benefits and consequences related only...
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