In re IK

149 Hawai‘i 551

495 P.3d 401 (Table)

In the INTEREST OF IK, JK, SK, RK, and KK

NO. CAAP-20-0000737

Intermediate Court of Appeals of Hawai‘i.

September 27, 2021

On the briefs:

Matthew Mannisto, for Respondent-Appellant.

Russell K. Goo, Julio C. Herrera, Ian T. Tsuda, Patrick A. Pascual, for Petitioner-Appellee.

(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

MEMORANDUM OPINION

Respondent-Appellant Mother (Mother ) appeals from the Decision and Order Terminating the Parental Rights of [Father] and [Mother] and Awarding Permanent Custody (Termination Order ), entered December 8, 2020, in the Family Court of the Fifth Circuit (Family Court ),¹ terminating her and Respondent Father's (Father )² (together, Parents ) parental rights to IK, JK, SK, RK, and KK (Children ).

On appeal, Mother raises four points of error, that the Family Court: (1) clearly erred in entering findings of fact (FOFs ) C, EE, and WW; (2) abused its discretion in entering mixed conclusions of law and findings of fact (Mixed Conclusions and Findings ) RR, XX, and BBB; (3) abused its discretion in finding that there was clear and convincing evidence she was not presently, and would not be in the reasonably foreseeable future, willing and able to provide the Children a safe family home, even with the assistance of a service plan; and (4) abused its discretion in terminating her parental rights. Mother contends the Family Court prematurely terminated her parental rights given that: she completed all services required by Petitioner-Appellee State of Hawai‘i Department of Human Services (DHS ), and her parental rights were terminated solely based on conflicting testimony as to whether she should have more time to terminate her "on and off relationship" with Father, who is abusive; and the September 30, 2020 Permanent Plan (Permanent Plan ) is not in the Children's best interests as it has a goal of adoption by paternal grandparents (Paternal Grandparents ), despite evidence that Father now resides with Paternal Grandparents.

For the reasons discussed below, we vacate the Termination Order and remand to the Family Court for further proceedings.

I. Applicable Standards

In addressing whether to terminate parental rights, the Family Court applies the standards set forth in Hawai‘i Revised Statutes (HRS ) § 587A-33 (2018), which provides in relevant part:

(a) At a termination of parental rights hearing, the court shall determine whether there exists clear and convincing evidence that:

(1) A child's parent whose rights are subject to termination is not presently willing and able to provide the parent's child with a safe family home, even with the assistance of a service plan;

(2) It is not reasonably foreseeable that the child's parent whose rights are subject to termination will become willing and able to provide the child with a safe family home, even with the assistance of a service plan, within a reasonable period of time, which shall not exceed two years from the child's date of entry into foster care;

(3) The proposed permanent plan is in the best interests of the child. In reaching this determination, the court shall:

(A) Presume that it is in the best interests of the child to be promptly and permanently placed with responsible and competent substitute parents and family in a safe and secure home; and

(B) Give greater weight to the presumption that the permanent plan is in the child's best interest, the younger the child is upon the child's date of entry into foster care; and

(4) The child consents to the permanent plan if the child is at least fourteen years old, unless the court consults with the child in camera and finds that it is in the best interest of the child to proceed without the child's consent.

(b) If the court determines that the criteria set forth in subsection (a) are established by clear and convincing evidence and the goal of the permanent plan is for the child to be adopted or remain in permanent custody, the court shall order:

(1) That the child's parent's parental rights be terminated;

(2) Termination of the existing service plan and revocation of the prior award of foster custody;

(3) That permanent custody of the child be awarded to an appropriate authorized agency;

(4) An appropriate permanent plan; and

(5) The entry of any other orders the court deems to be in the best interests of the child, including restricting or excluding unnecessary parties from participating in adoption or other subsequent proceedings.

....

(h) If the court determines that the criteria set forth in subsection (a) are not established by clear and convincing evidence, the court shall order:

(1) The preparation of a plan to achieve permanency for the child;

(2) The entry of any orders that the court deems to be in the best interests of the child;

(3) A periodic review hearing to be held within six months after the date of the last permanency hearing; and

(4) A permanency hearing to be held within twelve months of the date of the last permanency hearing.

(Emphases added).

"Clear and convincing" evidence is defined as

an intermediate standard of proof greater than a preponderance of the evidence, but less than proof beyond a reasonable doubt required in criminal cases. It is that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable.

Iddings v. Mee-Lee, 82 Hawai‘i 1, 13, 919 P.2d 263, 275 (1996).

[T]he family court's determinations ... with respect to (1) whether a child's parent is willing and able to provide a safe family home for the child and (2) whether it is reasonably foreseeable that a child's parent will become willing and able to provide a safe family home within a reasonable period of time present mixed questions of law and fact; thus, inasmuch as the family court's determinations in this regard are dependant upon the facts and circumstances of each case, they are reviewed on appeal under the clearly erroneous standard. Likewise, the family court's determination of what is or is not in a child's best interests is reviewed on appeal for clear error.

Moreover, the family court is given much leeway in its examination of the reports concerning a child's care, custody, and welfare, and its conclusions in this regard, if supported by the record and not clearly erroneous, must stand on appeal.

In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623 (2001) (citations, quotation marks, and brackets omitted).

The family court's FOFs are reviewed on appeal under the clearly erroneous standard. A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

Id. (citations, quotation marks, and ellipsis omitted).

II. Background

The Family Court made a number of findings, only some of which Mother challenges in this appeal. To the extent Mother does not challenge findings by the Family Court, we are bound by those findings. Bremer v. Weeks, 104 Hawai‘i 43, 63, 85 P.3d 150, 170 (2004) ; Okada Trucking Co., Ltd. v. Bd. of Water Supply, 97 Hawai‘i 450, 458, 40 P.3d 73, 81 (2002) ("[f]indings of fact ... that are not challenged on appeal are binding on the appellate court.").

To provide context for Mother's appeal, we set out most of the Family Court's findings and conclusions in its Termination Order, filed on December 8, 2020, and we bold the items challenged by Mother in this appeal.

A The child/ren's mother, legal father, adjudicated, presumed, or concerned natural father, as defined under HRS Chapter 578, is/are not presently willing and able to provide the child/ren with a safe family home, even with the assistance of a service plan;

B It is not reasonably foreseeable that the child/ren's mother, legal father, adjudicated, presumed or concerned natural father, as defined under HRS Chapter 578, will become willing and able to provide the child/ren with a safe family home, within a reasonable period of time;

C Despite the reasonable efforts made by the Department of Human Services to have the parents resolve their substance abuse and domestic violence issues, parents have failed to do so ;

D The [Father] has not appeared in court nor has he engaged in a service plan, he has been defaulted for his failure to appear;

E The [Mother] had made some progress in demonstrating that she could be a protective parent when she temporarily ended her relationship with [Father] and sought a protective order against him;

F Although Mother recognized that her relationship with father was toxic and the domestic violence the children experienced traumatized them, she made the decision to set aside any temporary retaining orders and engaged in an "on-again –- off-again" relationship with father;

G On November 7, 2018, [RK, then 2 years, 7 months old] and [KK, then 1 year, seven months old] were found alone, in the neighbors yard and the police were called, Mother arrived while the police were investigating and refused to divulge the location of her older three children, [RK] and [KK] were removed from her care;

H The older three children, [IK], [JK] and [SK] were located later in the day on November 7, 2018, in the care of [Paternal Grandparents], protective custody was taken and they remained with [Paternal Grandparents] as Resource Caregiver/Grandparents;

I In the October 2019 Ohana Conference, Father committed to working with the DHS on the Family Service Plan;

J In October 2019; [KK] had a near drowning incident while on a visit with Mother to the beach, he was evacuated to Kapiolani Children's Hospital for treatment and care;

K Mother and Father both went to Kapiolani Children's Hospital to be with him as he was being

...