NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 28405
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
IN THE INTEREST OF K.W.
Mother-Appellant (Mother) appeals from the Order Awarding Permanent Custody and the Letters of Permanent Custody, both entered by the Family Court of the First Circuit (the family court) (1) on January 11, 2007, which awarded permanent custody of Mother's natural daughter, K.W. (Child), to the Director of the Department of Human Services of the State of Hawai‘i (DHS).
On appeal, Mother asserts four points of error: (1) the family court erred in concluding that "it is not reasonably foreseeable that [Mother] will not be able to provide [Child] with a safe family home in face of the fact that [M]other had been actively engaged in therapy[;]" (2) the family court "should have given [M]other additional time to fulfill the service plan because [M]other has demonstrated all the various ways that she cares for [Child;]" (3) the family court should not have permitted Mother's "waiver of cross examination and the submission of the case on the record as it deprives a person of their right to due process[;]" and (4) the family court "should have proceeded with a full blown trial as this is the only method wherein Appellant's rights as a mother are protected."
As to her first two points on appeal, Mother has not challenged any of the facts found by the family court in its Findings of Fact and Conclusions of Law filed on March 27, 2007. "If a finding is not properly attacked, it is binding; and any conclusion which follows from it and is a correct statement of law is valid." Kawamata Farms v. United Agri Products, 86 Hawai‘i 214, 252, 948 P.2d 1055, 1093 (1997) (internal quotation marks omitted). Mother has also not presented any argument in her opening brief as to the first two points on appeal. Accordingly, we deem these points waived and abandoned. Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7); Berkness v. Hawaiian Elec. Co., 51 Haw. 437, 438, 462 P.2d 196, 197 (1969).
As to Mother's third and fourth points on appeal, we note initially that the following discussion occurred at the outset of the January 11, 2007 permanent-custody trial:
[DEPUTY ATTORNEY GENERAL]: Your Honor, I think there's a proposal to modify the trial procedure today which I'll yield -- defer to [Mother's counsel].
[MOTHER'S COUNSEL]: Yes, Your Honor. In discussions with both the guardian ad litem and my client, what we intend to do today is waive cross in terms of the report writers for [DHS] and we'd be asking the judge to render a decision based upon the exhibits submitted.
[MOTHER'S GAL]: That's correct, Your Honor.
[MOTHER]: I haven't really submitted everything.
[MOTHER]: Yes, this is the family service plan.
[MOTHER'S COUNSEL]: Actually this is what I've submitted already. All of those things that . . .
I am submitting just M through O on behalf of [M]other to --- and copies have been provided to all the parties.
[MOTHER'S COUNSEL]: I think [M]other just wanted to state for the record that she was in compliance with the --
[MOTHER'S COUNSEL]: -- completed the service plan.
THE COURT: Understood. [Child's GAL].
THE COURT: Thank you. Any objections to [M]other's exhibits?
THE COURT: All in evidence subject to cross. You may proceed.
(Emphasis added.) No cross-examination occurred, and the parties thereafter made their closing arguments.The record thus indicates that Mother was present at trial, was represented by counsel, conferred with her counsel regarding her waiver of cross-examination, had a GAL protecting her interests, and was provided an opportunity to present evidence and exhibits as well as cross-examine the witnesses who had been summoned to appear at trial. Mother was agreeable to submitting the case to the court based on the exhibits submitted, and she personally addressed the court and informed the court that she had completed the family service plan. Therefore, Mother waived her right of cross-examination. See In re Doe, 77 Hawai‘i 109, 116, 883 P.2d 30, 37 (1994). "The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner[.]" Sandy Beach Defense Fund v. City and County of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). Mother was certainly afforded such an opportunity.
Moreover, the record reveals that the family court bent over backwards to protect Mother's parental rights in Child. Not only did the family court set aside several defaults by Mother for failing to attend court hearings, but contrary to Hawaii Revised Statutes (HRS) § 587-73(a)(2) (2006), (2) the family court gave Mother approximately four years, instead of two years, to provide Child a safe home with the assistance of a service plan. Mother failed to complete the service plan after four years due to her inability to pass required drug tests and find safe and stable housing for herself or Child.
In light of the history of this case, we cannot conclude that Mother was denied due process at trial or that the family court erred in allowing her to submit the case based on the exhibits and evidence submitted at trial. Additionally, the family court did not err or abuse its discretion when it terminated Mother's parental rights for Mother's failure to provide a safe home within a reasonable period of time. Id. Therefore,
IT IS HEREBY ORDERED that the family court's Order Awarding Permanent Custody and the Letters of Permanent Custody, both filed on January 11, 2007, are hereby affirmed.
DATED: Honolulu, Hawai‘i, April 24, 2008.
1. The Honorable Paul T. Murakami presided.
2. HRS § 587-73(a)(2) provides now, as it did at the time of trial, as follows:
. . . .