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In re TM

Supreme Court of Hawaii

January 6, 2014



Benjamin E. Lowenthal, for petitioner.

Nolan Chock, (with Mary Anne Magnieron the briefs), for respondent.




We hold that the failure of the Family Court of the Third Circuit[1] (the court) to appoint counsel for Petitioner/ Mother-Appellant Jane Doe (Petitioner) until nearly nineteen months after Respondent-Appellee Department of Human Services (DHS) filed a Petition for Temporary Foster Custody over Petitioner's son, T.M. constituted an abuse of discretion under Hawai'i Revised Statutes (HRS) § 587-34[2] (2006) and § 587A-17[3](Supp. 2012) which necessitates vacating the court's April 17, 2012 Order "Terminating [Petitioner's] Parental Rights and Awarding Permanent Custody" to DHS.[4] We recognize that parents have a substantive liberty interest in the care, custody, and control of their children that is protected by the due process clause of article I, section 5 of the Hawai'i Constitution.[5] In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458 (2002). Therefore, we additionally hold that parents have a constitutional right to counsel under article I, section 5 in parental termination proceedings and that from and after the filing date of this opinion, courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.

For the reasons set forth herein, the aforesaid April 17, 2013 Order of the Court, the "Findings of Fact [(findings)] and Conclusions of Law [(conclusions)] re [Termination of Parental Rights (TPR)] Hearing" entered on May 3, 2012, and the July 26, 2013 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its June 28, 2013 Summary Disposition Order affirming the court's order are vacated, and the case is remanded for a new hearing.



T.M. was born to Petitioner on June 8, 2009, when Petitioner was fifteen years old. In August, 2009, Petitioner was "diagnosed with Psychotic Disorder, Bipolar [Disorder], Panic Disorder, and Adjustment Disorder with Mixed Disturbance Emotions/Conduct." DHS filed two Petitions for Temporary Foster

Custody, one over Petitioner and one over T.M., on January 6, 2010.

On January 7, 2010, the court held a hearing on the DHS petition. At the hearing, the court advised both Petitioner's parents and Petitioner herself of the salutary purpose of having a court-appointed attorney:

[The Court]: You all, the parents, have an opportunity to either agree or disagree with the allegations. If you disagree, that's fine. I mean, you know, I'm not holding anything against anyone until the evidence is presented and I have to make a decision. It's always wise, however, when children are in temporary out-of-home placement, that you have the benefit of having an attorney help you.
And if you cannot afford an attorney, then the Court may appoint an attorney to represent you at no cost to you. All I would need is an application to be completed. I'll review it, and if you qualify financially, I will appoint an attorney to represent you. That's always a good idea only because there's a lot of legal things that happen in the courtroom that you may not be aware of or familiar with, and having an attorney by your side is always a great benefit.
You may choose to represent yourself if you wish. That's fine, and I will try my best to help — or let you know what's happening. I cannot give you legal advice, but at least I can kind of give you your options, and you make your decisions on what you want to do. You may, if you wish, hire your own attorney. That's up to you, but that will be at your cost. So there's a couple of options.

(Emphases added.) The court stated it would attempt to find one person to act both as guardian ad litem and as an attorney for Petitioner but suggested that having separate persons act as a guardian ad litem and as an attorney might be necessary:

Now, [Petitioner], 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. 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 guardian ad litem, two people, because what the guardian ad litem may feel would be in her best interest may not be what she would like. So that's why she would need an attorney.

(Emphasis added.) The record does not indicate that Petitioner submitted an application for court-appointed counsel at that point.

Following the hearing, the court approved court-appointed counsel for Petitioner's mother and T.M.'s father.[6]However, the court did not appoint counsel for Petitioner. Instead, the court apparently had Stephanie St. John (St. John) act as Petitioner's guardian ad litem. At the next hearing, on January 14, 2010, the court suggested that St. John was serving both as Petitioner's guardian ad litem and Petitioner's attorney:[7]

THE COURT: Okay. Very well. Ms. St. John, you're pretty much playing a dual role here.
MS. ST. JOHN: Well, that's my first thing, your Honor, is that at this point understanding that I haven't spoken with [Petitioner] yet, and I need to speak with her about this stuff because if there's going to be a difference of opinion in working as a guardian ad litem than working as her attorney, then I would be suggesting that she have a separate attorney to deal with her as a mother over [T.M]. But at this point I haven't spoken with her to find out whether or not there is any conflict between those two positions.

(Emphases added.) But, as indicated above, St. John did not confirm that she was serving as Petitioner's attorney. Instead, St. John told the court that there might be a conflict in serving in both capacities and she would "speak with [Petitioner]" to determine if Petitioner desired to have "a separate attorney".

According to finding 7 of the court's May 3, 2013 findings and conclusions, "[f]amily court jurisdiction over [T.M.] and his parents [including Petitioner] was established at [the] hearing on February 10, 2010. Foster custody was awarded to the [DHS]. For purposes of the Child Protective Act, [T.M.'s] date of entry into foster care was February 10, 2010." (Emphasis in original.)


A service plan hearing[8] was held on March 3, 2010. The Family Service Plan established the "initial goal" as "[m]aintain[ing] [T.M.] in placement or in a safe family home with his mother, [Petitioner], " and the "reunification of [Petitioner] with her mother, or her father and his fiance." The "final goal" was to "[m]aintain [Petitioner] and . . . [T.M.] in a safe family home without the need for further DHS intervention." The family plan stated that the "target date" to "maintain [Petitioner] and her son, [T.M.] in a safe family home without the need for further DHS intervention" was February 2011.

The Plan provisions required Petitioner to "continue to participate in services provided by [the Department of Health, Family Guidance Center], including compliance with any prescribed medication, " and "to make efforts to complete [her] education via attendance at school, work on correspondence courses, and participation in the [] Grads Program."[9] The Plan was to "remain in effect until August 23, 2010, or further order of the court." The Plan also set forth "consequences, " which explained to Petitioner that "your parental and custodial duties and rights concerning . . . [T.M.] . . . may be terminated by an award of permanent custody unless you are willing and able to provide . . . [T.M.] with a safe family home within the reasonable period of time specified in this family service plan."

However, no provision of the Plan specified the "reasonable period of time" in which Petitioner was required to provide T.M. with a safe family home. The Ohana conference report stated that "if the parents are unable to provide the children with a safe family home within a reasonable period of time up to one year, even with a service plan, parental rights may be subject to termination." However, at the time the service plan was filed, although HRS § 587-72 (2006) did allow DHS to file a motion for a permanent plan hearing if the child was outside the family home for twelve consecutive months, parents could prevail at that hearing by demonstrating that it was "reasonably foreseeable" that they would be able to provide the child with a safe family home in "a reasonable period of time which shall not exceed two years from the date upon which the child was first placed under foster custody by the court." HRS § 587-73 (2006) (emphasis added). This two-year requirement is also reflected in present Hawai'i law. HRS § 587A-33 (a) (2) (Supp. 2 012).

Petitioner was apparently found to have possessed marijuana on November 30, 2010. The terms of her probation included the requirement that she "shall not consume or possess any alcoholic beverages, illegal drugs, non-prescribed prescription drugs, or drug paraphernalia."

A combined second periodic review hearing and permanency hearing[10] was held on January 26, 2011. At a permanency hearing, "[t]he court shall review the status of the case to determine whether the child is receiving appropriate services and care, that case plans are being properly implemented, and that activities are directed toward a permanent placement for the child." HRS § 587A-31(b). Under HRS § 587A-31, one of the options at a permanency hearing is for the court to order "the child's continued placement in foster care" if, inter alia, "[r]eunification is expected to occur within a time frame that is consistent with the developmental needs of the child." HRS § 587A-31(d).

On January 21, 2011, DHS formulated a revised family service plan. The revised plan added the provision that [Petitioner] "[f]ollow all the requirements of her probation, including additional treatment needs such as substance abuse treatment, etc."

At the January 26, 2011 hearing both DHS and T.M.'s guardian ad litem, Susan M. Kim (Kim), "recommended that [Petitioner] be given more time to reunify with her son." This recommendation was consistent with the goals of the family plan, i.e., to reunify Petitioner with either her mother or father and to reunify T.M. with Petitioner.

At the hearing, St. John noted that she disagreed with Petitioner regarding Petitioner completing a therapeutic home process:

I have to state this because as her guardian ad litem, I have to notify the Court that what I'm going to say is different from what she wants, and I know that she wants to go home to mom.
The problem is that my recommendation would be for her to complete her therapeutic home process.

The court informed Petitioner that she needed to accept more responsibility for the care of T.M. The court also approved the revised "family service plan dated January 21st, 2011, " and entered an order finding that "[t]he parents of [T.M.] [including Petitioner] have partially complied with the Family Service Plan. They have only made ...

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