IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
In the Interest of JOHN DOE,
born on February 27, 1983,
a child under the age of eighteen years
(FC-S NO. 95-0001K)
and
In the Interest of JANE DOE,
born on April 6, 1986,
a child under the age of eighteen years
(FC-S NO. 95-0002K)
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Lim and Foley, JJ.)
Petitioner-Appellant (Mother) is the mother of John Doe (John) born on February 27, 1983, and Jane Doe (Jane) born on April 6, 1986. The children have been in various foster homes since December 25, 1994, when Mother was involuntarily admitted to Kona Hospital for psychiatric evaluation. In this case, Mother is the only person in "the children's family." Mother appeals the family court's September 23, 1998 Order Awarding Permanent Custody and Establishing a Permanent Plan that decided, in relevant part, as follows:
IT IS THE FINDING OF THE COURT by clear and convincing evidence, taking into consideration the guidelines for determining
a safe home, that:
1. The children's family [Mother] is not presently . . . able to provide the children with a safe family home, even with
the assistance of a service plan;
2. It is not reasonably foreseeable that
the children's family [Mother] will become . . . able to provide the children
with a safe family home, even with the assistance of a service plan, within
a reasonable period of time. . . .
. . . .
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
. . . .
2. That the parental and custodial duties
and rights of the children's natural and legal mother, [Mother], are hereby
divested pursuant to §587-2 and §587-3, H.R.S.;
3. That the Director of DHS is hereby appointed
permanent custodian of [John], born on February 27, 1983, and [Jane], born
on April 6, 1986, with authority to delegate its responsibilities and duties
to a professional member of its staff;
4. That, until the children reach the age
of eighteen (18) or are adopted, the permanent custodian is awarded each
of the parental and custodial duties and rights as are set forth in HRS
§587-2, "Permanent Custody;"
. . . .
7. That each term set forth in the Permanent
Plan filed May 12, 1998, is hereby ordered by the Court, and incorporated
herein by reference and made a part of the record in this case;
8. That the children's family members shall
retain, to the extent that such family members possessed such responsibility
prior to the transfer of permanent custody, the continuing responsibility
for the support of the children, . . . .
. . . .
10. That [Mother] may be permitted visitation
with the children at the discretion of the permanent custodian, provided
that the exercise of such discretion may be revi[e]wed by the Court and
the Court may order that a family member be permitted such visitation as
is in the best interest of the children;
. . . .
12. That [Mother] shall remain as a limited
party in the above-entitled matter for visitation-related issues and shall
be noticed for and may appear at further hearings[.]
In accordance with Hawaii Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs submitted by the parties, and duly considering and analyzing the law relevant to the arguments and issues raised by the parties, we decide that the family court's September 14, 1999 Revised Findings of Fact and Conclusions of Law are supported by the record and support the family court's decision. In relevant part, they state as follows:
FINDINGS
OF FACT
. . . .
4. The children were placed in protective
custody by CPS [Child Protective Services] in Kona on December 25, 1994
because [Mother] was involuntarily admitted to Kona Hospital for psychiatric
observation. . . . Mother was homeless at that time.
5. Dr. Gwendolyn Ross, psychiatrist, diagnosed [Mother] as
having a fixed delusional system. She was
also paranoid and had a persecution complex.
. . . .
15. With respect to the harm that was caused
by [Mother's] dysfunctional care:
b) The children had/have no inner sense
of stability or security.
c) The children had/have an elevated level of fear
relating to physical safety and needs.
d) The children were exposed to victimization,
which affected the formation of their personal and sexual identity.
e) The children had/have low self-esteem
and feelings of shame.
. . . .
17. At the permanent plan hearing(s) [Mother]
was still in the process of addressing her own mental health needs and
could not provide the type of parenting that the children needed.
. . . .
20. The court is cognizant of the fact
that [M]other's parenting duties and responsibilities would have to be
performed concurrently with her own recovery. . . .
. . . .
23. After her release from the Hawaii State Hospital, the
[Mother] began treatment with Dr. Shelley Ham, a
psychiatrist. Treatment with Dr. Ham started on July 3,
1997. It was only at that time that she
made significant improvement due to the consistent use of anti-psychotic
medication[.]
. . . .
25. Although [Mother] participated in numerous
rehabilitative services since the first court-ordered service plan in 1995,
she was still not able to provide the children with a safe family home,
even with the assistance of a service plan, at the conclusion of the permanent
plan hearing.
. . . .
31. [Mother] cannot provide the children with a safe family
home, even with the assistance of a service plan. The court has fully reviewed the reports submitted pursuant to HRS section 587-40, and finds the expert opinion of the DHS
social worker to be rationally based on
the available information.
. . . .
CONCLUSIONS
OF LAW
. . . .
D. All the criteria set forth in HRS section
587-73 were established by clear and convincing evidence. The order awarding
permanent custody to the DHS was appropriate and in the best interests
of the children.
. . . .
F. The parental and custodial rights of
the children's natural fathers, . . . , were terminated at a court hearing
on December 4, 1996.
G. As of the last court date of the permanent
plan hearing, [Mother] was not able to provide the children with a safe
family home, even with the assistance of a service plan.
H. It was not reasonably foreseeable that [Mother] would become . . . able to provide the children with a safe family home,
even with the assistance of a service plan,
within a reasonable period of time.
I. There was clear and convincing evidence that [Mother] should be divested of her parental rights with respect to [John]
and [Jane].
.
. . .
L. The Family Court had a statutory obligation to order a permanent plan because the children had been in foster
custody by the court for over three years by court order, (1)
and [Mother was] still not . . . able to provide the
children with a safe family home, even with the assistance
of a service plan.
(Footnote added.)
ACCORDINGLY, IT IS HEREBY ORDERED that the Order Awarding Permanent Custody and Establishing a Permanent Plan from which the appeal is taken, filed on September 23, 1998, is affirmed.
DATED: Honolulu, Hawaii, February
1, 2001.
On
the briefs:
Alfred P. Lerma, Jr.,
for Mother-Appellant.
Jay K. Goss and
Mary Anne Magnier,
Deputy Attorneys General,
for Department of Human
Services-Appellee.
1. In 1999, Act 153, Haw. Sess. L. 481, § 5
at 495, amended Hawaii Revised Statues § 587-73(a)(2) (1993), in relevant
part, as follows:
It is not reasonably foreseeable that the child's legal mother,
. . . will become . . . 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 [three] years from the date upon which the child was first placed under foster custody by the court[.]