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In re K Children

Intermediate Court of Appeals of Hawaii

September 30, 2013

IN THE INTEREST OF K CHILDREN

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (FC-S NO. 05-0052)

Rebecca A. Copeland (Law Office of Rebecca A. Copeland, LLC) for Appellant-Mother

Kimberly Tsumoto Guidry First Deputy Solicitor General Department of the Attorney General for State of Hawai'i, Department of Human Services

Nakamura, C.J., and Foley and Reifurth, JJ.

MEMORANDUM OPINION

The Family Court of the Third Circuit (Family Court)[1] terminated the parental rights of Mother-Appellant (Mother) over her children, AK and MK (Children), pursuant to the "Findings of Fact, Conclusions of Law and Order Granting Motion to Terminate Parental Rights" (Order Terminating Parental Rights) filed on October 18, 2012. On appeal, Mother argues that the Family Court erred in terminating Mother's parental rights. In particular, Mother contends that the Family Court: (1) erred in determining that Mother could not provide a safe family home; (2) erred in determining that the permanent plans were in the best interests of Children; (3) violated Mother's due process rights "by requiring that she either take potentially dangerous psychotropic drugs or permanently lose her Children"; and (4) erred in failing to appoint a guardian ad litem for Mother. We affirm.

BACKGROUND

Mother has a long history of mental illness. In May 2005, the Department of Human Services (DHS) removed Children from Mother's custody after receiving reports of Mother's deteriorating mental condition. Mother was reportedly hallucinating, speaking to her mother, who was in Arizona, as if she were present in the room, and yelling and screaming at other tenants in Mother's apartment complex. A neighbor stated that Mother yells, screams, and swears at people outside the apartment building several times each day, sometimes continuing for an hour. This behavior led to frequent calls to the police and caused the landlord to eventually evict Mother.

AK told a DHS social worker that Mother yelled and talked to people who were not there, sometimes for hours at a time. AK said that Children were worried and scared by Mother's behavior and hid in the bedroom closet or under the bed. Mother also began speaking with what was described as a "Rastafarian accent, " which she had developed within the last three years. In 2005, Mother had a third minor child, JN, who was apparently in Mother's care and custody. Mother thought that JN was present in her home, even though his whereabouts were unknown and he had not been living with her for weeks. In June 2005, Mother agreed to temporary foster custody of Children and JN, after JN was located.

Mother was diagnosed at various times between 2005 and 2012 as suffering from psychosis; psychosis and schizophrenia, . paranoid type; post-traumatic stress disorder, crystal methamphetamine induced psychosis (resolving), and paranoid personality disorder; psychotic disorder not otherwise specified; schizophrenic disorder; psychotic disorder not otherwise specified; organic mental disorder secondary to polysubstance abuse; and schizophrenia, paranoid type, and alcohol/poly substance abuse. Mother also admitted to a history of using marijuana, crystal methamphetamine, cocaine, and alcohol.

Although not all of the mental health professionals who diagnosed Mother recommended that she take anti-psychotic medication to treat and control her psychotic symptoms, many of them did. Mother, however, refused to take any medication to address her mental health condition. Between 2005 and 2012, Mother's mental health problems remained unresolved, and she continued to exhibit, delusional, confrontational, and erratic behavior.

Despite Mother's mental health issues, the DHS made efforts to reunify Mother with Children, including permitting visits with Children. Although there were periods during which the visits were positive and successful, Mother's erratic and confrontational behavior attributable to her mental illness, and its effect on Children, resulted in suspensions or restrictions on Mother's visitation. Eventually, MK refused to visit with Mother, and Children both consented to their respective permanent plans, which called for the termination of Mother's parental rights.

In the meantime, the DHS again referred Mother for a psychiatric evaluation in 2009. Henry H. Yang, M.D. (Dr. Yang), who performed the evaluation, noted that Mother had grandiose delusions and admitted to auditory hallucinations, and he diagnosed Mother as having organic mental disorder secondary to polysubstance abuse. Dr. Yang opined that Mother suffered from a disabling mental disorder, which rendered her unable to make rational decisions necessary to function as a responsible and supportive parent. Dr. Yang opined that Mother would benefit from anti-psychotic medications such as Risperdal or Geodon to relieve her symptoms of psychosis. However, because Dr. Yang did not believe that Mother posed an imminent danger to herself or others, he noted that "it would be up to [Mother]" to comply with recommendations to take such medications. Dr. Yang recommended that if Mother sought to regain custody of Children, medication management with psychotropic medications should be required. He also recommended that Mother be -evaluated to see if her mental condition improved in response to the medications, to the point where she could be a responsible parent.

In December 2009, the DHS proposed a service plan that explicitly required Mother to engage in medication management that would include the provision of psychiatric medications as recommended by Dr. Yang. Mother objected to the proposed service plan. In support of her objection, Mother presented a February 2010 letter written by Dr. Albatosov, a psychiatrist with Care Hawaii, who had been treating Mother. Dr. Albatrosov stated that Mother had been reasonably stable over the past two years without taking any anti-psychotic medications and recommended that Mother continue close observation and individual therapy without the use of psychoactive medications. The Family Court amended the DHS' s proposed service plan to omit the reference to the psychiatric medications as recommended by Dr. Yang, but included a requirement that Mother participate in a medication management program if recommended. The Family Court approved and ordered the service plan, as amended, in April 2010.

In preparation for a December 2010 review hearing, the. Children's guardian ad litem (GAL) contacted Care Hawaii and learned that Dr. Albatrosov was no longer there and that his duties had been assumed by Nidhi Chabora, an advanced practice nurse with prescriptive rights. Nurse Chabora informed the DHS that Mother was very paranoid and had delusions of persecution. Nurse Chabora stated that without the assistance of medications, which Mother was refusing, Mother would present a danger to Children if they were reunited with Mother.

In August 2011, the DHS requested a hearing date on its motion to terminate Mother's parental rights. Mother requested the appointment of an independent medical examiner, and the Family Court appointed Samuel Paltin, D.O., M.D. In November 2011, the DHS filed a withdrawal of it motion to terminate Mother's parental rights and instead sought a guardianship for Children without the termination of Mother's parental rights. However, when Mother stated that she would not consent to the proposed guardianship, the DHS renewed its motion to terminate Mother's parental rights.

Dr. Paltin testified at the hearing on the DHS's motion to terminate parental rights, and the report he prepared of his psychiatric evaluation of Mother was admitted in evidence. Dr. Patlin's diagnosis of Mother was schizophrenia, paranoid type, and alcohol/polysubstance abuse. Dr. Paltin noted that Mother's disorder is characterized by delusions and hallucinations, difficulty in formulating logical conclusions, and the inability to function adequately over a prolonged period. It was Dr. Paltin's belief that without the assistance of antipsychotic medication, Mother would not be able to function as an adequate parent for her teenage children.

The Family Court terminated Mother's parental rights and approved and ordered the terms set forth in the ...


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