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In re TM

Intermediate Court of Appeals of Hawaii

June 28, 2013

IN THE INTEREST OF TM

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (FC-S No. 10-002K)

Benjamin E. Lowenthal, for Mother-Appellant.

Mary Ann Magnier and Nolan Chock, Deputy Attorneys General, for Petitioner-Appellee.

Foley and Fujise, JJ.

SUMMARY DISPOSITION ORDER

Mother-Appellant (Mother) appeals from the Family Court of the Third Circuit's (Family Court) "Order Terminating Parental Rights and Awarding Permanent Custody to DHS" (TPR Order) entered on April 17, 2 012, and "Findings of Fact and Conclusions of Law re TPR Hearing" entered on May 3, 2012.[1] In the TPR Order, the Family Court, inter alia, terminated Mother's parental rights to TM, appointed the Director of the Department of Human Resources (DHS) to be permanent custodian of TM, and ordered DHS's Permanent Plan dated December 6, 2 011.

On appeal, Mother argues that the Family Court abused its discretion when it (1) failed to appoint her counsel until after TM had been in foster care for nineteen months and (2) refused to continue the termination of parental rights (TPR) hearing so she could continue working toward providing TM with a safe family home.

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 resolve Mother's points of error as follows.

(1) The Family Court did not abuse its discretion by failing to appoint counsel to represent Mother prior to September 13", 2 011. Mother fails to demonstrate that the Family Court abused its discretion when it failed to appoint counsel to represent her earlier in the proceedings. See Hawaii Revised Statutes (HRS) §§ 587-34 (2006) and 587A-17 (Supp. 2012); In re Doe, 84 Hawai'i 41, 46, 928 P.2d 883, 888 (1996). She challenges none of the Family Court's findings of fact but instead, argues in a vague and conclusory manner that she could have avoided termination proceedings if counsel had been appointed sooner. Without more, we cannot hold that the court's omission "[led] to [an] erroneous decision[.]" Lassiter iv. Deo't of Soc. Serv. of' Durham Cnty., N.C. , 452 U.S. 18, 27- (1981); See also In re A Children, 119 Hawai'i 28, 57, 193 P.3d 1228, 1257 (App. 2008).

An independent review of the record reveals no indication that the lack of earlier-appointed counsel prejudiced Mother's substantial rights. See In re Doe, 99 Hawai'i 522, 534 n.18, 57 P.3d 447, 459 n.18 (2002). The Family Court was well aware that Mother was. entitled to a GAL and her own attorney:

Now, [Mother], her situation is a little different, and that is because she's a minor under the law, she's entitled to a guardian ad litem [GAL]. At the same time she is a mother, a parent, and so she's entitled to an attorney. I'm going to try my best to find a person that can act in both responsibilities. There may be, though, the situation where she will have both an attorney and a [GAL], two people, because what the [GAL] may feel would be in her best interest may not be what she would like. So that's, why she would need an attorney.

It appears that Mother's GAL voiced the possibility that Mother would need an attorney in addition to her services. Three days after her appointment, the GAL told the Family Court that she needed to speak with Mother "because if there's going to be a difference of opinion in working as a [GAL] than working as her attorney, then I would be suggesting that she. have a separate attorney to deal with her as a mother over [TM]." However, no application for court appointed counsel was filed until, at the Family Court's suggestion that the GAL help Mother file an application for appointed counsel, one was filed on September 19, 2011.

However, the record shows that the proceedings were not adversarial in nature when these proceedings began in January 2010. When the Family Service Plan was filed on February 23, 2010, the ultimate goal was to "Maintain [Mother] and [TM] in a safe family home without the need for further DHS Intervention." There were a number of resources made available to Mother, when the plan was designed to achieve reunification of TM with Mother: The Family Court appointed a GAL for Mother four days after she and TM were placed in foster care. Mother attended all hearings with her GAL. She was provided with the services of a therapist, a substance abuse counselor, a probation officer, a foster parent and DHS social worker. Her substance abuse counselor and probation officer testified on Mother's behalf at the termination hearing.

Most importantly. Mother was counseled by the Family Court itself on what was expected of her if she wanted to retain her child. At a combined periodic review hearing and permanency hearing on January 26, 2011, both the DHS social worker and TM's GAL recommended that Mother be given more time to reunify. The court approved a revised Service Plan, which added a requirement that Mother "[f]ollow all the requirements ...


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