In re Interest of K

151 Hawai‘i 326

511 P.3d 825 (Table)

In the INTEREST OF K CHILDREN, KK1, KK2, and KK3

NO. CAAP-21-0000350

Intermediate Court of Appeals of Hawai‘i.

June 27, 2022

On the briefs:

Jacob G. Delaplane, for Father-Appellant

Patrick A. Pascual, Julio C. Herrera, Erin K.S. Torres, Ian T. Tsuda, Deputy Attorneys General, for Petitioner-Appellee

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

SUMMARY DISPOSITION ORDER

Appellant-Father (Father ) appeals from the Decision and Order Re: Motion to Terminate Parental Rights, filed on April 30, 2021, by the Family Court of the First Circuit (Family Court ).¹ In his appeal, Father challenges many findings of fact (FOFs ) and conclusions of law (COLs ) in the Family Court's Findings of Fact and Conclusions of Law, filed on June 24, 2021. He further contends the record lacks clear and convincing evidence supporting the Family Court's conclusions that: Father is not willing and able to provide his three children (Children )² a safe family home and would not become willing and able to do so within a reasonable period of time; and that Petitioner-Appellee State of Hawai‘i, Department of Human Services’ (DHS ) February 13, 2020 permanent plan (Permanent Plan ) is in the Children's best interests. Father also asserts the Family Court abused its discretion and/or committed structural error by denying his choice of private counsel and by denying his request for a continuance of trial, which prevented him from pursuing reunification through joint therapy and from being represented by counsel of choice.

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 points of error as follows and we affirm.³

(1) Father contends the Family Court abused its discretion and/or committed structural error in denying his request for a further continuance of trial (which had previously begun) to allow private attorney Andrea Graf (Graf ) to represent him at the continued trial in April 2021, pro bono, in place of court-appointed counsel, Jacob Delaplane (Delaplane ), or alternatively, to be represented by both counsel "at no additional cost" to the Family Court and without a continuance. Father contends a criminal defendant's right to counsel under the Sixth Amendment to the United States Constitution and article I, section 14 of the Hawai‘i Constitution "encompasses a right to privately retained counsel of choice," State v. Maddagan, 95 Hawai‘i 177, 179-80, 19 P.3d 1289, 1291-92 (2001), that the denial of the right to counsel of choice in a criminal case is structural error, State v. Cramer, 129 Hawai‘i 296, 303, 299 P.3d 756, 763 (2013), and that the constitutional right to private counsel of choice should extend to termination of parental rights (TPR ) cases.

Here, the Family Court denied Father's request to continue trial for Graf to prepare because trial had already been continued for six months and the Children had been in foster care for over four years. Father contends the Family Court erred by failing to weigh the countervailing government interests identified in Cramer. Even assuming arguendo⁴ the right to private counsel of choice extends to TPR cases, "the interests implicated by criminal and termination of parental rights cases are substantially different. Most notably, termination of parental rights proceedings implicate the interests of the child in having a prompt and permanent resolution of his or her custody status -- a factor that is absent in the criminal context." In re RGB, 123 Hawai‘i 1, 26, 229 P.3d 1066, 1091 (2010). Accordingly, the Family Court did not abuse its discretion by denying the continuance based on the length of time the Children had been in foster care.

As to Father's alternative request to be represented by both counsel without a continuance, we reject Father's position that he was entitled to continued representation by court-appointed counsel free of charge even if he retained additional, private counsel. Cf. State v. Mickle, 56 Haw. 23, 27, 525 P.2d 1108, 1111 (1974) (holding that a criminal defendant is entitled to a court-appointed attorney as an indigent defendant if he or she "is unable to obtain counsel without substantial hardship to himself or his family").

Accordingly, the Family Court did not abuse its discretion in denying Father's request for a continuance, or in the alternative, to be represented by both appointed and privately retained counsel.⁵

(2) We review Father's challenges to the Family Court's FOFs for clear error and its COLs de novo. Fisher v. Fisher, 111 Hawai‘i 41, 46, 137 P.3d 355, 360 (2006). FOFs are clearly erroneous when: (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, we are nonetheless left with a definite and firm conviction that a mistake has been made. Id. " ‘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.

Father challenges FOF 96, which provides, in part: "When the Court awarded temporary foster custody of the Children to the DHS in the FC-DA cases on September 23, 2016 .... Father caused [Child 1] to reside with his aunt .... Father did not cooperate with the DHS’ requests to contact [aunt] to turn over [Child 1] to the DHS." He contends there is no evidence he did not cooperate in locating Child 1. However, the September 2016 Safe Family Home Report states that "DHS requested [Father] to contact his aunty to turn over [Child 1] to the DHS. [Father] did not cooperate with the request or returned [sic] the DHS’ calls/texts." Therefore, FOF 96 is not clearly erroneous.

Father challenges FOFs 98, 99, 113, and 117,⁶ which state:

98. Based on the credible evidence in the record, and drawing all reasonable inferences from the credible evidence, the Children know that Father and Mother are their parents. However, the Children's attachment figures, who they look to for, and who they believe will provide them with physical and emotional security and stability are [the Resource Care Givers (RCGs )].

99. The Children's statements to their guardian ad litem, Mr. Nagamine [(GAL )], the DHS, Dr. Steven Choy, Ph.D., who conducted the mental health assessments of the Children, and the Children's respective therapists is that they want to continue to reside with the [RCGs] and do not want to live with either parent is credible, and the Court so finds.

....

113. After being taken into foster care and being placed in the safe and stable home of the [RCGs], [Child 1] felt safe to make disclosures about the conditions in family home before the September 2016 removal, such as being hit by Father and being afraid of Father.

....

117. [Child 1] has consistently stated that she wants to continue to live with [the RCGs, who are] her maternal grandparents, and that she does not want to live with Father.

Father contends: there is no evidence that the RCGs are the Children's "only sources of secure attachment" or that Child 1 felt safe to disclose Father's abuse only after being removed from the family home; there is no basis to judge the Children's credibility because the Family Court declined to meet with the Children; and Child 1 told Father she wants to live with him. The record contains multiple independent sources supporting the challenged findings, including reports by the GAL and Mary Greaney (Greaney ), one of the Children's therapists. See State v. Kwong, 149 Hawai‘i 106, 112, 482 P.3d 1067, 1073 (2021) ("It is for the trial judge as fact-finder to assess the credibility of witnesses and to resolve all questions of fact; the judge may accept or reject any witness's testimony in whole or in part."). Thus, FOFs 98, 99, 113, and 117 are not clearly erroneous.

Father challenges FOFs 101 and 102, which state:

101. Throughout the pendency of this case, Father alleged that the [RCGs] have coached and/or coerced the Children to make negative statements about Father, such as Father's negative statements and conduct during visits, and to tell their therapists, their GAL and the DHS that they want to live with the [RCGs]. Based on the credible reports of Dr. Choy and the expert testimony of [Child 1]’s therapist, Dr. Borofsky, and [Child 2] and [Child 3]’s therapist, Gina Eustaquio, [Licensed Mental Health Counselor], in their opinions, the Children are not being coached and/or coerced. Father's allegations about the [RCGs] coaching/coercing the Children are not credible.

102. Since the Children's placement with the [RCGs], Father has made negative allegations about the [RCGs] during the pendency of this case.

(Footnote omitted.) Father contends there is no evidentiary basis for FOF 101 because the RCGs did not testify, and the other evidence is not substantial. The Family Court relied on multiple credible reports and testimony and FOF 101 is not clearly erroneous. Kwong, 149 Hawai‘i at 112, 482 P.3d at 1073. As to FOF 102, Father admits to making negative allegations about the RCGs but contends the allegations were proven true. Even if true, this does not render FOF 102 clearly erroneous.

Father challenges FOFs 106, 107, and 108, which state:

106. Father's testimony that [RCGs’ son] was again living in the [RCGs’] home because [Child 2] told that [sic] him that [RCGs’ son] was living in the [RCGs’] home is not credible.

107. At trial, Father testified that the [RCGs] were allowing Mother to have unauthorized visits with the Children, such as visits at the [RCGs’] home, including unsupervised visits. According to the credible reports of the DHS and the credible testimony of the DHS [Child Welfare Services (CWS )] worker Ms. Ober, the [RCGs] do not allow Mother to be at their home, and that Mother is only given telephonic or virtual visits. Further, according to Ms. Ober's credible testimony, [maternal grandmother] keeps a log documenting Mo

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