*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

IN RE L.I. AND H.D.K

________________________________________________________________

SCWC-18-0000773

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-18-0000773; FC-S NOS. 14-1-0092 and 15-1-0072)

MARCH 11, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND

CIRCUIT JUDGE CATALDO, IN PLACE OF POLLACK, J., RECUSED

OPINION OF THE COURT BY WILSON, J.

I. INTRODUCTION

This case arises from the termination of Petitioner/

Appellant mother’s (“Mother”) parental rights as to her children 

L.I. and H.D.K. Mother asserts that the Family Court of the 

Second Circuit1 (“family court”) erred in failing to appoint 

counsel prior to the grant of foster custody. 

 

1 The Honorable Keith E. Tanaka presided.

Electronically Filed

Supreme Court

SCWC-18-0000773

11-MAR-2021

08:00 AM

Dkt. 37 OP
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

2

The instant appeal also makes apparent an 

inconsistency in this court’s opinion in In re T.M., 131 Hawaiʻi

419, 319 P.3d 338 (2014), regarding when counsel must be 

appointed for a parent in a child custody proceeding.

The failure to appoint Mother counsel at the time the 

Department of Human Services (“DHS”) filed a petition for foster 

custody violates In re T.M., and was thus, structural error. As 

discussed below, however, because foster custody or termination 

of parental rights is possible upon the filing of a petition for 

family supervision, we now further hold that Mother should have 

been appointed counsel at the time DHS filed its petition for 

family supervision. Accordingly, we vacate the Intermediate 

Court of Appeals’ (“ICA”) Judgment on Appeal affirming the 

family court’s order granting DHS foster custody and subsequent 

order terminating Mother’s parental rights and remand.

II. BACKGROUND2

Mother has two children, L.I., who was born on 

December 22, 2012, and H.D.K, who was born on June 18, 2015.

DHS’s involvement with L.I. and H.D.K. began after a report of 

Mother’s substance use. Mother admitted to her substance abuse 

problem during an interview with DHS. On June 13, 2014, DHS 

 

2 The procedural history of this case will not be fully discussed 

as the only issue before this court is whether the family court erred when it 

failed to appoint Mother counsel prior to the grant of foster custody. 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

3

filed its Petition for Family Supervision of Mother’s then-only 

child, L.I., and on June 24, 2014, Mother consented to family 

supervision of L.I.

On July 22, 2014, Mother agreed to her first service 

plan, which required her to participate in a substance abuse 

assessment and recommended treatment, to receive individual 

counseling, to be responsible for L.I.’s needs, and to cooperate 

with DHS.

On January 13, 2015, the family court conducted a 

periodic review hearing, where DHS’s Safe Family Home Report 

(“SFHR”) filed on January 9, 2015 was admitted by the court,

which documented Mother’s inability to “manage her life” and 

care for L.I. The family court revoked family supervision and 

placed L.I. in foster care with DHS effective January 13, 2015. 

Additionally, the family court ordered its second service plan, 

and Mother agreed to participate in a psychological evaluation, 

a substance abuse assessment and recommended treatment, random 

urine analysis if recommended by the assessment, and monthly 

contact with the social worker by telephone, email, or in 

person. On April 14, 2015, Mother was appointed counsel.

On June 18, 2015, H.D.K. was born drug-exposed,

testing positive for methamphetamines at birth. DHS filed a 

petition for temporary foster custody of H.D.K. On August 31, 

2015, Mother stipulated to the court’s jurisdiction due to a 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

4

threat of harm from “inadequate housing” and agreed to courtordered services. The court awarded DHS foster custody over 

H.D.K. and ordered the service plan dated August 31, 2015, which 

involved both children.

Mother failed to comply with her August 31, 2015 

service plan, and a SFHR filed on December 24, 2015 documented 

that there were unresolved safety issues including substance 

abuse, lack of stable housing, and emotional and mental health 

issues. 

At the hearing on December 29, 2015, DHS asked that an 

Order to Show Cause (“OSC”) hearing be set pursuant to HRS 

§ 587A-29 (2019), requiring Mother to present evidence as to why 

the case should not be set for a termination of parental rights

or legal guardianship hearing. The court found “in favor of the 

department that this case should go into permanency” because 

“mother has not met the burden[.]”

On August 11, 2017, DHS filed its Motion to Establish 

a Permanent Plan (“MEPP”). Mother contested the MEPP, and a 

trial was scheduled for October 20, 2017. The MEPP’s stated 

goal was to terminate Mother’s parental rights, have DHS be 

nominated as permanent custodian, and have the children adopted 

under HRS § 587A-33 (2016). The hearing on the MEPP took place 

on October 20, 2017 and January 5, 2018. On January 31, 2018, 

the family court issued its Order Re: Permanent Plans. The 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

5

court found that Mother “has consistently failed to comply with 

service plans” and that the “adoption of both children, each to 

different adoptive parents and homes”3 is “in the best interests 

of each minor.” The court ordered the Permanent Plan for both 

children and ordered the placement for each child with the 

adoptive parents, directing DHS to file its motion to terminate 

parental rights within 60 days. DHS filed a Motion to Terminate 

Parental Rights (“MTPR”) on July 6, 2018.

On September 21, 2018, the family court issued its 

Order Terminating Parental Rights, finding by clear and 

convincing evidence that Mother was not presently willing and 

able to provide the children with a safe family home, even with 

the assistance of a service plan. The family court also found 

the proposed Permanent Plan to be in the best interests of the 

children. The court granted DHS’s MTPR, terminated Mother’s 

parental rights, awarded permanent custody of the children to 

DHS, and approved the Permanent Plan dated July 6, 2018.

On October 8, 2018, Mother appealed to the ICA. 

Relevant to this appeal, Mother argued that the family court 

abused its discretion when it only appointed her counsel ninetyseven days after her older child was placed in foster custody. 

 

3 The court noted that although “in separate homes, the children 

spend a considerable amount of time visiting with each other while in the 

current placement.”
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

6

Mother stated that this court held in In re T.M. that a family 

court must appoint counsel for indigent parents when a petition 

for temporary foster custody is granted. 

The ICA filed a Summary Disposition Order (“SDO”) on 

April 6, 2020, affirming the family court’s September 21, 2018 

Order Terminating Parental Rights. The ICA held that although 

the family court erred by failing to appoint counsel for Mother 

until ninety-seven days after L.I. was placed in foster custody, 

the error was harmless because Mother suffered no prejudice or 

harm as a result. Quoting In re T.M., the ICA noted that “the 

Hawai‘i Supreme Court clearly held that ‘trial courts must

appoint counsel for indigent parents upon the granting of a 

petition to DHS for temporary foster custody of their 

children.’” 131 Hawaiʻi at 436, 319 P.3d at 355. However, the 

ICA explained that “under the circumstances of this case, we are 

reluctant to vacate the Termination Order on this ground.” The

ICA observed that although the “delay of three months was 

impermissible,” Mother’s “early departure from the courtroom on 

January 13, 2015, her failure to provide DHS a specific street 

address for her new residence, and her inconsistent responses to 

voicemail messages and instructions for completing the paperwork 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

7

necessary to establish her indigency all contributed greatly to 

the delay.”4

Mother filed an application for writ of certiorari to 

review the ICA’s decision on June 12, 2020. In Mother’s

application, she presents two questions related to the family 

court’s delay in appointing her counsel:

(1) Does this Court’s ruling in In re T.M., 319 P.3d 338, 

340 (Haw. 2014), require a trial court in a child 

welfare case to appoint counsel for a parent upon the 

State’s filing of a petition seeking custody, and 

prior to the deprivation of custody? 

(2) Where the trial court fails to appoint counsel, is 

that failure harmful per se such that reversal is 

required without the parent having to demonstrate 

prejudice? 

In addition, Mother argues that there is ambiguity “as to 

whether courts must appoint counsel upon filing of the petition 

or whether due process permits such appointment to be delayed 

until after a court grants foster custody of the children to the 

State.” Mother observes that In re T.M. created ambiguity 

because it gives conflicting guidance as to when counsel must be 

appointed: 

It stated 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.” . . . . However, the Court also stated later in 

the opinion that “upon the filing date of this opinion, 

 

4 At the January 13, 2015 periodic review hearing, the family court 

noted that there were continuing concerns regarding Mother’s ability to care 

for L.I., and DHS sought foster custody. After the family court granted 

foster custody over L.I. to DHS, Mother left the room prior to the hearing’s 

conclusion.
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

8

trial courts must appoint counsel for indigent parents upon 

the granting of a petition to DHS for temporary foster 

custody of their children.” 

III. STANDARD OF REVIEW

A. Constitutional Law

“We answer questions of constitutional law by 

exercising our own independent constitutional judgment based on 

the facts of the case. Thus, we review questions of 

constitutional law under the right/wrong standard.” State v.

Ui, 142 Hawaiʻi 287, 292, 418 P.3d 628, 633 (2018). 

IV. DISCUSSION

A. In re T.M. requires counsel to be appointed at the time DHS 

files a petition for family supervision or a petition 

asserting custody over the child.

In In re T.M., the petitioner appealed from an order 

granting temporary foster custody of her children to DHS because 

she was not appointed counsel until nineteen months after DHS 

filed its petition for temporary foster custody. 131 Hawaiʻi at

421, 319 P.3d at 340. This court held that the family court’s 

failure to appoint counsel constituted an abuse of discretion. 

Id. The In re T.M. court explained that, had the petitioner 

been appointed counsel sooner, she may have been able to comply 

with the terms of the family plan and provide her child with a 

safe family home, thus potentially avoiding the subsequent 

termination of her parental rights. Id. at 433, 319 P.3d at 

352. The In re T.M. court concluded by holding that “parents 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

9

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.” Id. at 421, 319 P.3d at 340. 

The In re T.M. court repeatedly explained that counsel 

must be appointed once DHS files a petition to assert foster 

custody. See id. at 435, 319 P.3d at 354 (“Thus, as soon as DHS 

files a petition asserting custody over a child, parents’ rights 

are ‘substantially affected.’ At that point, an attorney is 

essential to protect an indigent parent’s liberty interest in 

the care, custody and control of his or her children.”); id.

(“Mandating the appointment of counsel for indigent parents once 

DHS moves for custody would remove the vagaries of a case-bycase approach.”).5 However, near the end of the opinion, the In 

re T.M. court states: “We direct that upon the filing date of 

this opinion, trial courts must appoint counsel for indigent 

parents upon the granting of a petition to DHS for temporary 

 

5 Furthermore, footnote 23 of the In re T.M. opinion explained that 

indigent criminal defendants “have a right to an attorney whenever they are 

threatened by imprisonment, even if imprisonment is not subsequently 

imposed.” Id. at 435 n.23, 319 P.3d at 354 n.23. The court noted that “the 

appointment of counsel is mandated because attempting to determine in advance 

of the proceedings whether legal representation would ultimately be required 

is an exercise in futility. The safeguard for parental rights thus rests on 

the appointment of counsel at the beginning of proceedings . . . when T.M. 

was taken into custody by DHS.” Id.
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

10

foster custody of their children.” Id. at 436, 319 P.3d at 355 

(emphasis added).

We now take this opportunity to clarify that In re 

T.M. mandated that family courts appoint counsel for indigent 

parents when DHS files a petition asserting custody over a 

child. We now further hold that family courts must appoint 

counsel for indigent parents when DHS files a petition for 

family supervision6 because, at that point, parental rights are 

substantially affected as foster custody can be ordered by the 

court at a subsequent hearing.7 See id. at 435, 319 P.3d at 354.

B. The failure of the family court to appoint Mother counsel 

when DHS filed a petition for family supervision was 

structural error.

The family court’s delay in appointing counsel

violated the mandate in In re T.M. that family courts must 

 

6 Though DHS argues that failure to appoint Mother counsel in this 

case is permissible because of Mother’s early departure from the January 13, 

2015 hearing, DHS takes the position that, as a general proposition, counsel 

should be appointed at the time DHS files a petition for family supervision.

7 A petition for family supervision hearing as well as review and 

return hearings implicate parental rights even if they do not directly 

address custody. See HRS §§ 587A-12(b) (“If the court determines that the 

child is subject to imminent harm while in the custody of the child’s family, 

the court shall order that a police officer immediately take the child into 

protective custody and that the department immediately assume temporary 

foster custody of the child.”); 587A-28(d) (“At the return hearing, the court 

shall decide . . . [w]hether the child should be placed in foster custody or 

under family supervision[.]”); 587A-28(g) (“Nothing in this section shall 

prevent the court from setting a termination of parental rights hearing at 

any time the court deems appropriate.”); 587A-30(b)(l) (“At each periodic 

review hearing, the court shall . . . enter orders . . . [t]hat the child be 

placed in foster custody if the court finds that the child’s remaining in the 

family home is contrary to the welfare of the child and the child’s parents 

are not willing and able to provide a safe family home for the child, even 

with the assistance of a service plan[.]”).
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

11

appoint counsel for indigent parents when DHS files a petition 

asserting custody over a child. The family court’s failure to 

appoint counsel was structural error.

According to Mother, In re T.M. and the principles of 

due process require a family court to appoint counsel for a 

parent upon DHS’s filing of a petition for custody. She notes 

that she was not appointed counsel until three months after the 

family court awarded foster care to DHS, and this delay was 

impermissible.

Mother is correct. In re T.M. “recognize[d] 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 Hawaiʻi 

Constitution.” In re T.M., 131 Hawaiʻi at 421, 319 P.3d at 340. 

Parents’ “substantive liberty interest in the care, custody, and 

control of their children” entitles indigent parents to 

appointed counsel when a petition for family supervision or a 

petition for foster custody is filed. This court recognized 

that “as soon as DHS files a petition asserting custody over a 

child, parents’ rights are ‘substantially affected.’ At that 

point, an attorney is essential to protect an indigent parent’s 

liberty interest in the care, custody and control of his or her 

children.” Id. at 435, 319 P.3d at 354.
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

12

Here, the family court’s three-month delay in

appointing counsel for Mother, after DHS was awarded foster 

care, is a clear violation of In re T.M. Pursuant to the 

holding in In re T.M., the failure to appoint counsel is a 

structural error that requires vacatur of orders made after 

DHS’s filing for foster custody. As Mother points out, had the 

family court appropriately appointed her counsel prior to the 

January hearing, where she lost custody to DHS without the 

benefit of counsel, she may have been able to prevent that 

deprivation of her constitutional right. 

The failure to timely appoint counsel is structural 

error which, under State v. Loher, requires vacatur without the 

necessity of proving harmful error.8 140 Hawaiʻi 205, 222, 398 

 

8 Our decision, that failure to appoint counsel for indigent 

parents when DHS files a petition for family supervision or a petition

asserting custody over a child is structural error, is in accord with the 

holdings of many of our sister courts. See e.g., In Interest of R.D., 277 

P.3d 889, 896 (Colo. App. 2012) (“A majority of other jurisdictions 

addressing the issue have concluded that the violation of a respondent 

parent’s statutory or constitutional right to counsel in a termination of 

parental rights hearing is either reversible error per se or structural 

error.”); In Interest of J.B., 624 So. 2d 792, 792 (Fla. Dist. Ct. App. 1993) 

(failure to advise parent of right to counsel at the original dependency 

adjudication proceeding, even when parent was represented by counsel at later 

proceedings, “cannot be deemed harmless error since the dependency 

adjudication was used as a basis of the adjudication of the permanent 

termination of appellant’s parental right”); In Interest of J.M.B., 676 

S.E.2d 9, 12 (Ga. Ct. App. 2009) (“[T]he total and erroneous denial of 

appointed counsel during the termination hearing is presumptively harmful 

because it calls into question the very structural integrity of the factfinding process.”); In re A.S.A., 852 P.2d 127, 129–30 (Mont. 1993) (failure 

to appoint parent counsel until the end of the termination hearing violates

parent’s constitutional right to due process and termination judgment was 

reversible error); In re S.S., 90 P.3d 571, 575–76 (Okla. Civ. App. 2004) 

(holding that when parent is deprived of right to counsel in termination of 

(continued . . .)
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

13

P.3d 794, 811 (2017). The family court’s failure to appoint 

Mother counsel when DHS filed its petition for family 

supervision was structural error and cannot be deemed harmless. 

Thus, the ICA erred when it failed to vacate the family court’s 

order granting DHS foster custody and order terminating Mother’s 

parental rights.

V. CONCLUSION

For the foregoing reasons, we vacate the ICA’s 

April 13, 2020 Judgment on Appeal affirming the family court’s 

order granting DHS foster custody and subsequent order 

terminating Mother’s parental rights, and remand for further 

proceedings consistent with this opinion and considering the 

best interests of the children.

Michael A. Glenn /s/ Mark E. Recktenwald

for Petitioner

/s/ Paula A. Nakayama

Adriel C.S. Menor

for Respondent /s/ Sabrina S. McKenna

Thomas A. Helper /s/ Michael D. Wilson

for Amici Curiae

/s/ Lisa W. Cataldo

 

(continued . . .)

parental rights proceeding, harmless error does not apply); In re Torrance 

P., 724 N.W.2d 623, 635 (Wis. 2006) (holding it was “structural error” to 

prohibit mother’s counsel from participating in termination hearing).