NOT FOR PUBLICATION
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
THE INTEREST OF DOE CHILDREN:
JOHN DOE, Born on March 27, 1997, and
JANE DOE, Born on July 19, 1998, Minors
FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 02-08025)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Lim and Nakamura, JJ.)
Two adult males are involved in this case. One is the father (Father) of John and Jane Doe. The other is Mother's husband, who is the stepfather of John and Jane Doe (Stepfather) and the natural and legal father of a male child (Stepbrother), born on December 28, 1989, and a male child (Halfbrother), born on March 23, 2002.
The relevant events occurred in the following order:
December 28, 1989 Stepbrother was born. Mother is not Stepbrother's natural mother.August 24, 1994 Mother gave birth to a male child, tested positive for methamphetamine, and was
September 26, 1995
The male child born on August 24, 1994 died
of suffocation due to food obstructing his
July 19, 1998 Mother gave birth to Jane Doe.January 22, 2002 Stepbrother and John and Jane Doe were placed in a foster home licensed by the DHS.
January 25, 2002 The DHS filed a Petition for Temporary Foster Custody of John and Jane Doe.January 29, 2002 Per stipulation, the family court (2) entered its Orders Concerning Child Protective Act
March 23, 2002 Mother gave birth to Halfbrother. Stepfather is the natural and legal father of Halfbrother.June 2002 Mother was arrested and subsequently convicted of Abuse of Family and Household
April 4, 2003 Halfbrother died.December 18, 2003 The first day of trial.
December 19, 2003 The second day of trial.The court entered its Order Awarding Permanent Custody in which it ordered the
January 7, 2004 Mother filed a motion for reconsideration.February 27, 2004 The family court entered its Orders Concerning Child Protective Act denying Mother's
March 24, 2004 Mother filed a notice of appeal.April 2004 In this month, Mother was expected to give birth to another child.
May 4, 2004 The family court entered its Findings Of Fact and Conclusions of Law.October 28, 2004 This appeal was assigned to this court.
There are 169 findings of fact (FOF). Mother appeals from the following nine.
FOF nos. 151 and 152 state as follows:
151. Mother is not presently willing and able to provide the Children with a safe family home, even with the assistance of a service plan because her foregoing problems continue to exist. She has frustrated and failed to benefit from the services that have been provided to her since the start of the case.
Mother contends that "[t]he record is insufficient to prove by clear and convincing evidence that [Mother] was unable or unwilling to provide a safe home because [Mother] had completed all required services."FOF nos. 116, 129, and 131 state as follows:
116. Despite participating in a parenting education class and an anger management class and completing these classes in the Summer of 2002, Stepfather showed that he did not benefit from these classes due to his inappropriate parenting and inappropriate use of physical discipline of [Stepbrother] in the Fall of 2002.
131. Stepfather has not demonstrated that he has made appropriate lifestyle changes to care for the special needs of the Children and to parent them without resorting to inappropriate discipline. Stepfather continues to be a risk of harm to the Children.Mother contends that "credible testimony showed that [Stepfather] had made changes regarding his anger.
FOF nos. 148 and 163 state as follows:
148. The court does not find Mother's testimony that she can protect the Children from Stepfather to be credible.
Mother contends that "she could be protective of the minors with [Stepfather] in the family home."
FOF nos. 153 and 154 state as follows:
153. The goal of the proposed permanent plan is adoption, which is in the best interests of the Children.
Mother contends that "[t]he Permanent Plan dated December 16, 2002 is not in the children's best interest because it does not address the death of [Halfbrother] while in the prospective adoptive home."Mother states that her appeal presents the following questions:
1. Is there clear and convincing evidence that Mother is unwilling and unable to provide a safe home for her children because her husband [Stepfather] has an anger problem that poses a risk of harm to her children?
3. Whether the permanent plan is inappropriate to assess the best interests of the children when the plan was prepared while [Halfbrother] was alive?Mother's appeal is focused on the question as to whether she is able to protect John and Jane Doe against Stepfather, her husband. In our view, that is only a part of the problem. The unchallenged findings show that both John and Jane Doe are special needs children and that Mother is unable to provide them with a safe family home. The following findings are among those that Mother did not challenge:
69. . . . There appears to be no appropriate services or combination of services that would allow [John Doe], taking into account his psychological condition that would allow him to be reunified with Mother and/or Father.
142. Based on the
psychological evaluation by Dr. Wingert, Mother was shown to suffer
from Features of Dysthymic Disorder (a form of
144. In the parenting assessment, Mother presented with a profile consistent with a person who was at increased risk for physical child abuse.
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 Mother, we conclude that Mother's points do not have merit. Therefore,
IT IS HEREBY ORDERED that the family court's December 19, 2003 Order Awarding Permanent Custody and February 27, 2004 Orders Concerning Child Protective Act are affirmed.
DATED: Honolulu, Hawai`i, April 18, 2005.
Herbert Y Hamada
On the briefs:
Patrick A. Pascual
Mary Anne Magnier,
Deputy Attorneys General
Judge Paul T.
Judge Marilyn Carlsmith presided.
Judge Marilyn Carlsmith presided.