NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

CAAP-24-0000177

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF B CHILDREN

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-S NO. 20-00214)

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)

Father-Appellant (Father) appeals from the Order

Terminating Parental Rights (TPR Order), entered on March 6,

2024, in the Family Court of the First Circuit (Family Court).1

The TPR Order terminated Father's parental rights to Father and

Mother-Appellee's (Mother's) three young children (Children). It

is undisputed that Petitioner-Appellee State of Hawai#i

Department of Human Services (DHS) took custody of the Children

after Mother called the Honolulu Police Department on December

18, 2020, and said she was unable to care for the Children. 

On appeal, Father contends that the Family Court erred

in granting DHS's June 28, 2022 Motion to Terminate Parental

1 The Honorable Natasha R. Shaw presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-24-0000177

28-AUG-2024

08:02 AM

Dkt. 71 SO
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Rights (TPR Motion) because: (1) DHS did not make reasonable

efforts at reunification; (2) the evidence was insufficient for

the Family Court to find, by clear and convincing evidence, that

Father would not be able to provide a safe home for the Children

within a reasonable time; and (3) the Family Court's

determination of witness credibility is clearly erroneous. 

Father challenges Findings of Fact (FOFs) 41, 73, 90, 92, 95, 96,

98-100, 105-107, 109, 111-114, 116, 121, 122, 124, and 125, and

Conclusions of Law 135, 152-156, and 160.2

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 Father's points of error as follows:

(1) Father contends that DHS did not make reasonable

efforts to reunify the Children with him because DHS restricted

his visits with the Children based on Mother's unsupported claim

that he was still using drugs. Then, in May 2022, his visitation

with the Children ceased all together because Mother filed a

petition for temporary restraining order (TRO) and included the

Children in her petition, and DHS took no action to have the

Children removed from the TRO. Father also argues that the

Children's therapist was not working on reunifying the Children

with him, but instead helping them adjust to the foster home. 

We examine Father's arguments in light of the entire

record in the Family Court. First, we note that DHS was not

2 Father's challenges to the Family Court's legal conclusions are

interwoven into his arguments and are addressed accordingly.

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obligated to seek an amendment of Mother's TROs on his behalf. 

See, e.g., In re Interest of K Children, No. CAAP-21-0000350,

2022 WL 2303894, at *8 (Haw. App. June 27, 2022) (SDO) (rejecting

Father's argument that DHS was obligated to advocate for

dismissal of Mother's TRO as part of reasonable efforts of

reunification). In addition, DHS had grounds for limiting

Father's visits, besides the information reported by Mother, and

it was not unreasonable for DHS to seek help for the Children to

adjust to the foster home. 

Unchallenged FOFs from the Family Court are binding on

the appellate court. Balogh v. Balogh, 134 Hawai#i 29, 33 n.3,

332 P.3d 631, 635 n.3 (2014). 

When the Children were first taken into custody, on

December 22, 2020, Father told DHS he was not in a position to

care for the Children. In December 2023, Father told DHS that he

was not ready for the Children to be reunified with him now or in

6 months. Dr. Marcin Bury, the Children's therapist, testified

that the Children were suffering from adjustment disorders and

separation anxiety disorder while in the foster home, and it was

expected the Children would remain with the foster family for

some time. As the custodian, DHS was obligated to provide

adequate psychological care for the Children in a timely manner. 

Hawai#i Revised Statutes § 587A-15(b)(3) (2018). 

The following uncontested FOFs establish a pattern of

drug use and domestic violence by Father:

74. Father started using methamphetamines at the

age of ten. 

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75. In October 2020, Father was arrested for abuse

of a family member when an argument with Mother regarding

his drug use escalated into domestic violence. 

76. In December, 2020, Father was willing to do

services and in day drug treatment at Po ’ ailani. Father

did not want to retraumatize the Children and was in no

position to care for them.

. . . . 

79. In June 2021, Father was clinically discharged

from the Po#ailani day drug treatment program.

80. In September, 2021, Father was kicked out of

the family home because he was using crystal meth and

fought with Mother. Father did not participate in a

one-time UA exam recommended by the DHS because of his

work schedule.

81. In October, 2021, Father and Mother drove

together to the TRO hearing that Mother filed. Father

would not let Mother out of the car and the TRO was

dismissed due to Mother's non-appearance.

82. In March 2022, Mother had bruises on her arms

and a broken tooth due to a physical altercation with

Father. Father was using drugs again and it was difficult

to participate in random UA exams due to his work schedule.

83. In April 2022, after a verbal altercation with

Father, Mother admitted that she needs to stay away from him

because he is abusive.

84. In May, 2022, Father was arrested for violating

a TRO that Mother filed.

. . . .

86. In October, 2023, although a TRO was in place,

Father still contacted Mother and engaged in domestic

violence. Father went to Mother's apartment and "trashed" it.

87. In November, 2023, Father found Mother at

Waimanalo Beach park and "beat" her. Father was also

arrested for violating a TRO that paternal grandmother (his

mother) filed against him. Father did not understand how

his "business" with paternal grandmother or with Mother was

related to this case.

. . . . 

89. In April, 2023, Father got into a substance

abuse treatment program at Queen's Day.

Father testified that he was discharged from the

Queen's drug treatment program in July 2023 after he admitted to

"meth use and MDMA." Queen's recommended residential treatment,

which he refused. Given, inter alia, the uncontested findings of

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Father's drug use and domestic violence, along with substantial

evidence of Father's failure to address his domestic violence

issues as required by the court-ordered service plan, Father's

inconsistent visits when visitation was allowed, and Father's

lack of insight into his inability to consistently and timely

demonstrate that he could safely care for the Children, we

conclude that the Family Court was not wrong to determine that

DHS had made reasonable efforts at reunification. 

(2) Father challenges FOFs 73, 92, 95, 96, 98, and

124, arguing that his evidence showed he was addressing the

issues that resulted in DHS bringing the case.3 We conclude that

3 These challenged FOFs state: 

73. Father suffers from a pattern of doing well in

services, then returning to substance use and domestic

violence with Mother.

. . . .

92. Father had participated in a few substance abuse

assessments/programs and random drug urinalyses, however,

was unable to demonstrate consistent and prolonged sobriety. 

. . . . 

95. Father completed domestic violence/anger

management education, however, was unable to demonstrate any

skills or knowledge that may have been acquired from those

classes. Father lacks the insight as to how his turbulent

relationship with Mother directly affects the Children's

development and well-being.

96. Father participated in individual therapy/

counseling with Alex Gino, however, failed to gain any

healthy stress management skills. Father failed to take

accountability for the direction of the case, continued to

blame others for his situation, and used drugs as his way of

"coping". Father testified that he did not share anything

about his domestic violence issues with Mr. Gino because

Father did not feel that it was a problem at that time.

. . . . 

98. Based upon credible evidence, throughout these

proceedings, Father has no insight into his recurring

problems with substance abuse and domestic violence with

Mother, and his inability to safely care for the Children. 

(continued...)

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these FOFs are not clearly erroneous, as they are supported by

substantial evidence in the record, including the Family Court's

determinations of credibility.

Father's involvement with DHS was due to his history of

substance abuse and domestic violence with Mother. The evidence

in the record supports that Father had not adequately addressed

either his substance abuse or domestic violence issues despite

having more than three years to work on it.

As the uncontested FOFs show, Father was clinically

discharged from the Po#ailani day drug treatment program in June

2021 but was using drugs again in September 2021. Father then

got into the Queen's Day program in April 2023, but according to

his testimony, he was discharged in July 2023, after admitting to

drug use. He then sought treatment from Gino Behavioral Health,

and tested positive for meth near the beginning of his treatment

with them. Thus, Father's drug use was a recurring problem.

Father's domestic violence also remained a problem. In

October 2023, Father "trashed" Mother's apartment, and he was

arrested for violating a TRO that his own mother had against him.

FOFs 86, 87. 

3(...continued)

Throughout this case, Father prioritized other things over

the Children and reunification.

. . . . 

124. The testimony of Father is credible in part and

not credible in part. The court finds Father credible in

his love for his Children. The court does not find Father

credible with regard to his insight and key respects

concerning his willingness and/or ability to provide a safe

family home within any reasonably foreseeable period of

time. 

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Father testified that he was working on domestic

violence issues through the PACT Family Peace Center. However,

the evidence in the record reflects that as of March 30, 2022,

Father participated in only two sessions and missed three

sessions. 

There was substantial evidence that supported the

Family Court's finding of a pattern of relapses by Father after

he received treatment. The Family Court did not clearly err in

finding clear and convincing evidence that Father was not

presently, nor in the reasonably foreseeable future, willing and

able to provide the Children with a safe family home. 

(3) Father contends that the Family Court clearly

erred in finding DHS Social Worker Melissa Lubick (Lubick), and

the Court-Appointed Special Advocate/Guardian Ad Litem credible,

and Alex Gino (Gino) not credible.

Any conflict between the testimony of Lubick and Gino

was for the Family Court to resolve. See DL v. CL, 146 Hawai#i

328, 336, 463 P.3d 985, 993 (2020) (issues dependent upon the

credibility of witnesses and the weight of the evidence are

within the province of the trier of fact). We conclude that

Father has failed to demonstrate that the Family Court's FOFs and

COLs are clearly erroneous.

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For these reasons, the Family Court's March 6, 2024 TPR

Order is affirmed.

DATED: Honolulu, Hawai#i, August 28, 2024.

On the briefs: /s/ Katherine G. Leonard

Acting Chief Judge

Tae Chin Kim,

for Father-Appellant. /s/ Clyde J. Wadsworth

Associate Judge

Eric J. Alabanza,

Julio C. Herrera, /s/ Karen T. Nakasone

Ian T. Tsuda, Associate Judge

Kellie M. Kersten,

Deputy Attorneys General,

for Petitioner-Appellee

 THE DEPARTMENT OF HUMAN SERVICES.

Crystal M. Asano,

for COURT-APPOINTED SPECIAL ADVOCATE.

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