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In re P Children

Intermediate Court of Appeals of Hawaii

May 29, 2013

IN THE INTEREST OF P CHILDREN

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 11-00098).

Herbert Y. Hamada for Mother-Appellant.

Mary Anne Magnier Asami M. Williams Deputy Attorneys General, for Petitioner-Appellee Department of Human Services.

Foley, Presiding J., Fujise and Reifurth, JJ.

SUMMARY DISPOSITION ORDER

Mother-Appellant (Mother) appeals from the Order Terminating Parental Rights, entered July 19, 2012 in the Family Court of the First Circuit[1] (family court).

On appeal, Mother claims the family court erred by finding that she was not currently willing and able to provide a safe family home for her three children. Mother contends that social worker, Laura Bailey (Bailey), should not have been allowed to testify at trial; and that another social worker, Debbie Yoshizumi (Yoshizumi), should not have been allowed to testify by telephone on July 19, 2012 after the court continued her testimony until August 31, 2012. Mother specifically challenges Findings of Fact (FOFs) 32, 50, 53, 54, 63, 67, 71, 73, 82, 83, 84, and 96. Lastly, Mother argues there was no FOF indicating the Permanent Plan dated December 27, 2011 is in the best interest of the children, as required by Hawaii Revised Statutes (HRS) § 587A-33(a)(3) (Supp. 2012).

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 conclude Mother's appeal is without merit.

The Department of Human Services (DHS) adduced clear and convincing evidence that Mother was not currently willing and able to provide a safe family home to the children, even with the assistance of a service plan. As part of Mother's service plan, she underwent an substance abuse assessment which recommended intensive outpatient treatment. Mother elected not to participate in the recommended intensive outpatient treatment in favor of meetings with her own therapist, Craig T. Twentyman, PhD (Dr. Twentyman.) Dr. Twentyman was not aware of the Mother's substance abuse assessment that recommended intensive outpatient treatment. Dr. Twentyman was also not aware that Mother had ever tested positive for drugs despite Mother testing positive for opiates on April 12 and 14, 2011, and testing positive for methamphetamine on April 28, May 3, and August 16, 2011. At the time of the July 2012 trial, Dr. Twentyman had not drug tested mother since 2011. During the pendency of this case, Mother failed to appear for at least 12 scheduled drug testings, which were considered to be presumptive positive drug test results. Mother was removed from the Hina Mauka random drug testing program in February 2012, Mother's substance abuse issues were clearly not resolved and Mother was not likely to address the issue after discontinuing random drug testing. Yet, Dr. Twentyman did not believe that Mother was a regular user of drugs.

Dr. Twentyman clinically discharged Mother after she completed her anger management and domestic violence counseling. However, Bailey opined that Mother could not provide a safe family home because of unresolved domestic and substance abuse issues, as evidenced by Mother's neighbors reporting that police were called to Mother's residence due to her fighting with her husband. Mother's fighting with her husband was one of the primary issues upon which this case was initiated.

Bailey was called and qualified as an expert witness in the area of social work and child protective services. As an expert witness, Bailey was not required to have personal knowledge of the case, could rely upon hearsay testimony as the basis for her opinions, and could rely upon the record that was already in evidence. Mother presents no specific argument as to why cross-examination of Bailey was not meaningful. In addition, Mother claims that Yoshizumi, and not Bailey, should have testified at trial. Yoshizumi did testify at trial. Furthermore, Mother does not specify any error that resulted from Yoshizumi testifying as planned on July 19, 2012 instead of August 31, 2012. Yoshizumi was called as an expert witness in the area of social work and was to provide her opinion in this area. She was not required to have personal knowledge of the case. Yoshizumi also testified as a lay witness to the events that she participated in as a social worker assigned to this case.

Mother argues FOFs 32, 50, 53, 54, 63, 67, 71, 73, 82, 83, 84, and 96 are clearly erroneous. Mother's opening brief fails to comply with Hawai'i Rules of Appellate Procedure Rule 28(b)(4) by failing to (1) contain in its points of error section, a concise statement that sets forth in separately numbered paragraphs the alleged error committed by the court; (2) indicate where in the record the alleged error occurred; and (3) indicate where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court. Therefore, the challenges to specific FOFs are waived. In any event, the FOFs are without merit.

Mother objects to FOFs 32, 82, 83, and 84 on the basis that Mother is willing and able to provide a safe family home. As explained above, the family court did not err by concluding that Mother was not willing and able to provide a safe family home, even with the assistance of a service plan. Therefore, FOFs 32, 82, 83, and 84 are not clearly erroneous.

FOF 5 0 states "Mother subjected the Children to imminent and threatened harm by using illegal drugs and failing to resolve domestic violence issues in the family home [, ] " and is not clearly erroneous because Mother did use illegal drugs. Furthermore, Mother also failed to resolve domestic violence issues in the ...


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