NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
IN THE INTEREST OF DOE CHILDREN:
JANE, Born on September 4, 1987,
JOHN, Born on January 26, 1995, and
JOHN, Born on July 22, 1996,
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 01-07826)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Watanabe and Fujise, JJ.)
Mother's first child, who is not a subject of this case, was placed into the care of his paternal grandparents when he was two years old.
Mother's second child, Jane Doe, was born on September 4, 1987. Mother's third child, John Doe 1, was born on January 26, 1995. Mother's fourth child, John Doe 2, was born on July 22, 1996. These three children will be referred to, collectively, as "the Children".On October 4, 2001, Mother signed a voluntary foster custody agreement for the placement of the Children in the foster care of the appellee, State of Hawai`i Department of Human Services (DHS).
On December 4, 2001, the family court awarded foster custody of the Children to DHS. On October 11, 2002, DHS moved for permanent custody. On October 7, 2003, the family court entered its Order Awarding Permanent Custody to DHS. On October 27, 2003, Mother filed a Motion for Reconsideration of Oral Order Granting Permanent Custody. On January 12, 2004, the family court entered its order denying Mother's motion for reconsideration. On February 6, 2004, Mother filed a notice of appeal. On March 30, 2004, the family court entered its Findings of Fact and Conclusions of Law (FsOF and CsOL). On September 20, 2004, this appeal was assigned to this court.
Two relevant FsOF state as follows:
Mother participated in a psychological evaluation on
April 29, 2002, and was diagnosed as suffering from a mood
otherwise specified, rule out major depressive disorder, borderline intellectual functioning, dependent personality disorder and
frequent use of denial and minimization.
Noting that the law requires clear and convincing evidence, Mother challenges the following two FsOF:
The DHS made reasonable and active efforts to
reunify the children with Mother and Father by offering service plans
designed to meet their needs and to facilitate the return of their children to a safe family home. . . .
It is clear that Mother had many deficiencies in her ability to provide her children with a safe family home. The various service plans, including the most recent one on April 6, 2003, addressed all but one of these deficiencies and specified the actions Mother was required to take to eliminate all but one of them. The one exception is that none of the service plans specified what action Mother was required to take to eliminate her dependent personality disorder noted in FOF no. 87.
Notwithstanding this deficiency, the family court, in FOF no. 111, decided that "any meaningful benefit in terms of improving her ability to provide her children with a safe family home that she might get from continuing services, including individual therapy for her dependent personality disorder, will not occur within a reasonable period of time."
Mother cites the following precedent:
We note, however, that DHS is under an obligation to provide a reasonable opportunity to parents through a service plan to reunify the family. See HRS §§ 587-1 and 587-26. The "purpose; construction" section of chapter 587, HRS § 587-1, establishes the legislative intent to provide "every reasonable opportunity" for a parent to be reunited with his or her child. Moreover, HRS § 587-26, which mandates that DHS create a service plan outlining "the steps that will be necessary to facilitate the return of the child to a safe family home," further indicates that DHS has an obligation to make reasonable efforts to reunite parent and child.
As DHS contends, and Mother does not contest, Mother specifically stated that she did not participate in DHS-offered services because she did not believe she needed parenting education or drug testing. Nor did she participate in services offered to her earlier while she was at Kapiolani Hospital. It is apparent that Mother was unwilling to participate in DHS services[.]In re Doe, 100 Hawai`i 335, 343-44, 60 P.3d 285, 293-94 (2002) (footnote and brackets omitted).
Mother does not challenge the following FOF:
112. Mother is not presently willing and able to provide the children with a safe family home, even with the assistance of a service plan.Mother challenges the following FOF:
It is not reasonably foreseeable that Mother will
become willing and able to provide the children with a safe family
with the assistance of a service plan, within a reasonable period of time.
The record indicates that Mother has a basis for complaining that: (1) no service plan informed her (a) that if she did not eliminate her personality disorder, she would not be able to provide the Children with a safe family home, and (b) of the action she must/should take to eliminate her personality disorder; and (2) the DHS did not provide her with the services necessary for her to eliminate her personality disorder.
Assuming, however, that Mother's personality disorder cannot be considered in support of FOF no. 113, Mother's many other deficiencies in her ability to provide the Children with a safe family home provided more than adequate support for FOF no. 113. In other words, the error is harmless.
In accordance with Hawai`i 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,
IT IS HEREBY ORDERED that the October 7, 2003 Order Awarding Permanent Custody is affirmed.
DATED: Honolulu, Hawai`i, March 8, 2005.
On the briefs:
Herbert Y. Hamada