IN RE RGB

• Decision Date: 01 April 2010
• Docket Number: No. 28582.,28582.
• Citation: 229 P.3d 1066
• Parties: In the Interest of RGB, A Minor.
• Court: Hawaii Supreme Court

229 P.3d 1066

In the Interest of RGB, A Minor.

No. 28582.

Supreme Court of Hawai`i.

April 1, 2010.

James Ireijo, for petitioner/mother-appellant.

Howard H. Shiroma, Deputy Attorney General, for respondent/petitioner-appellee.

MOON, C.J., NAKAYAMA, and RECKTENWALD, JJ.; and ACOBA, J., Dissenting, With Whom DUFFY, J., joins.

Opinion of the Court by RECKTENWALD, J.

In this appeal, we consider whether the family court abused its discretion in denying Mother's motion for relief from an order terminating Mother's parental rights. The motion alleged that Mother received ineffective assistance of counsel in the proceeding that resulted in the termination order, as well as in her direct appeal from that order.

Mother's child, RGB, was born in July of 1999. RGB was taken into protective custody on March 30, 2001, after she was found dirty and without a diaper or underclothing in the custody of Mother's ex-boyfriend, who had a history of substance abuse and had been diagnosed with chronic paranoid schizophrenia. RGB was later returned to Mother, but was placed in foster custody in April, 2002, and has remained with the same foster family since then. Mother and RGB were subsequently involved in a series of interactions with the Department of Human Services (DHS) and proceedings before the Family Court for the Third Circuit (family court). Mother was allowed to visit with RGB, but these visits had increasingly negative effects on RGB and were discontinued by the family court in 2004 after it concluded that "the visits were causing injury to RGB's psychological capacity as evidenced by a substantial impairment in RGB's ability to function."

After conducting a six-day permanency hearing, the family court issued its Findings of Fact, Conclusions of Law and Order terminating Mother's parental rights (Termination Order) on March 11, 2005.¹ On February 6, 2007, Mother filed a motion for "1) New Trial, and/or 2) To Reconsider and/or Amend Judgment and/or All Previous Orders, and/or 3) For Release of All Evidence or Files in Case, and/or 4) For Dismissal," alleging that her prior counsel was ineffective. The family court denied Mother's motion on May 8, 2007.

Mother seeks review of the May 21, 2009 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its April 9, 2009 Summary Disposition Order (SDO), affirming the family court's order denying Mother's motion. In her application for a writ of certiorari (application), Mother raises the following questions:

A. Whether The Intermediate Court Of Appeals ("ICA") "Borrowing" Of Criminal Matters Analogy To Apply To Family Court Claims Of Ineffective Counsel Is Authorized By Law And Meets Constitutional Standards?

B. Whether The ICA Upholding Of The Trial Court's Refusal To Release "Confidential" Records That Appellate's sic Counsel Could Not Examine But At The Same Time Requiring Counsel To "Identify Any Prejudice Stemming From This Limitation" Meets Fair Disclosure Standards?

We resolve Mother's appeal as follows. First, we consider the basis of Mother's ineffective assistance of counsel claim. Since we conclude that the family court properly determined that Mother had a right to counsel under the United States Constitution in the circumstances of this case, we do not reach the question of whether the Hawai`i Constitution provides indigent parents a right to counsel in all termination proceedings. Second, we conclude that a Hawai`i Family Court Rules (HFCR) Rule 60(b)(6) motion was an appropriate method for raising an ineffective assistance of counsel claim in the circumstances of this case.

Third, we hold that the family court did not abuse its discretion in denying Mother's motion, particularly in view of the negative impacts on RGB of the delay in resolving her custodial status. Thus, we respectfully disagree with the dissenting opinion's view that such impacts should not be considered in assessing that motion. Dissenting Opinion at ___-___, 229 P.3d at 1128-29. The motion was filed nearly two years after the family court's March 11, 2005 order terminating Mother's parental rights, and contained no allegations whatsoever about what errors had occurred in the family court proceedings leading up to the entry of the Termination Order. By the time the motion was filed, RGB had been living with the same foster family for nearly five years, and wanted to be adopted by that family. However, the adoption had been delayed pending the resolution of these proceedings. As set forth in a January 2006 report by DHS to the family court:

RGB's foster parents want to adopt RGB and have been ready to proceed with the adoption process ever since biological mother's parental rights were terminated in March 2005. However, biological Mother's pending appeal to the court. . . has prevented the DHS and RGB's foster parents from proceeding with the adoption. Hence, foster parents and RGB and the entire family are disappointed. Per foster mother, RGB continually wonders and asks "when will she be adopted".

Given those circumstances, and given Mother's failure in the Rule 60(b)(6) motion to identify any potentially meritorious issues that would have been raised but for the ineffectiveness of her counsel, the family court did not abuse its discretion when it denied the motion.

Finally, we hold that the family court did not abuse its discretion in precluding Mother from having access to those records in this case that were generated after September 28, 2006, i.e., more than a year after her parental rights were terminated, while allowing her to have access to records created prior to that date for purposes of appeal.

Accordingly, we affirm the judgment of the ICA.

I. Background

A. Termination of Parental Rights

DHS first became involved with Mother and RGB on March 30, 2001, when RGB was taken into protective custody. On April 6, 2001, the family court awarded DHS temporary foster custody of RGB. On June 15, 2001, RGB was returned to Mother's care under family supervision. On April 4, 2002, the family court awarded foster custody to DHS. Mother was allowed supervised visitation. On April 1, 2004, the family court suspended visitation between Mother and RGB indefinitely.

A permanent plan hearing was held on August 23, August 30, September 3, September 20, September 27 and December 13, 2004.² On March 11, 2005, the family court issued its Termination Order, which included the following relevant Findings of Fact (FsOF):³

3. Mother grew up on the mainland in difficult circumstances. She was hospitalized on at least four different occasions for psychiatric conditions. Mother abused drugs and substances. She was in a series of unstable, sometimes violent relationships with men.

4. Mother had another child who was removed from her care by the State of California. Over her objection, the parental rights of Mother to her older daughter were terminated, and the child was permanently placed with Mother's sister.

. . .

6. While living in the bay area of California, Mother again became pregnant.

Fearful that California authorities would remove her second child, she moved to Hawai`i when eight months pregnant with RGB.

. . .

8. Mother encountered many difficulties living in Hawai`i after the birth of RGB. She did not apply for public assistance because she was fearful that State authorities might remove RGB. She had very little money. At times she and RGB were homeless.

9. On March 30, 2001, RGB was taken into police protective custody after she was found in the care of Mother's ex-boyfriend. At the time that she was placed in police custody, she was dirty and did not have on a diaper or underclothing.

10. Mother's ex-boyfriend and Mother had been in a relationship for many years. Mother's ex-boyfriend had a history of substance abuse and a mental health diagnosis of chronic paranoid schizophrenia with acute exacerbation. He had been acquitted of two sexual assault offenses due to incapacity.

11. A temporary foster custody hearing was conducted. Mother applied for and received the services of court-appointed attorney, Cynthia Linet.

12. On April 6, 2001, the Family Court awarded the Department of Human Services ("DHS"), temporary foster custody of RGB on the basis that she was subject to imminent harm due to Mother's past history of mental health problems and her current relationship with Mother's ex-boyfriend.

. . .

14. On June 15, 2001, . . . the Court returned RGB to Mother's care under family supervision.

15. On November 29, 2001, DHS again petitioned the Court for foster custody of RGB. Mother and RGB had been evicted from the homeless shelter and had moved to the Rossmond Hotel. Mother was having difficulty controlling RGB and following through with skills taught by the parenting program that she attended.

16. The Court . . . continued family supervision of Mother and RGB.

17. Mother's attorney, Ms. Linet, moved to withdraw as counsel. Mother asked to be allowed to represent herself. The Court allowed Ms. Linet to withdraw as Mother's counsel and allowed Mother to appear pro se.

18. On April 4, 2002, DHS again petitioned for foster custody of RGB. Mother and RGB had moved back to the homeless shelter because the Rossmond Hotel was closed for renovation. . . . Based on representations made, the Court awarded foster custody of RGB to DHS and scheduled a contested disposition hearing to determine whether RGB should remain in foster care.

19. The Court appointed Alexander W. Thoene, Jr.⁴ to serve as counsel for Mother. The disposition hearing was conducted on April 12, 15, and May 14, 2002. Mother failed to appear for the fourth day of the disposition hearing on June 17, 2002.

20. The Court defaulted Mother for purposes of the disposition hearing and found that she suffered from a mental condition which distorted her perception of the people that she had been in contact with to the point that she considered all of them to be conspiring against her to deprive her of RGB. The

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