NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

NOS. CAAP-22-0000034 AND CAAP-22-0000035 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

CAAP-22-0000034 

IN THE INTEREST OF JM 

(FC-S NO. 17-00020) 

AND 

CAAP-22-0000035 

IN THE INTEREST OF AM 

(FC-S NO. 17-00023) 

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT 

SUMMARY DISPOSITION ORDER 

(By: Wadsworth, Presiding Judge, McCullen and Chan, JJ.) 

 In these consolidated appeals, Respondent-Appellant 

(Mother) appeals from two orders terminating parental rights 

entered by the Family Court of the Fifth Circuit,1 which together 

terminated Mother's parental rights as to JM and AM (Children).2 

1 The Honorable Edmund D. Acoba presided.

2 Mother is the natural and legal mother of Children. Children's 

father (Father) did not appeal the TPR Orders.

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000034

31-MAR-2023

08:25 AM

Dkt. 123 SO
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

2

Specifically, Mother appeals from: (1) the January 3, 2022 

order terminating parental rights as to JM, entered in FC-S 

No. 17-00020, which created the appeal in CAAP-22-0000034; and 

(2) the January 3, 2022 order terminating parental rights as to 

AM, entered in FC-S No. 17-00023, which created the appeal in 

CAAP-22-0000035 (collectively, TPR Orders). On January 3, 2022, 

the family court entered the same findings of fact and 

conclusions of law (FOF/COL) in each proceeding.

On appeal, Mother first challenges FOF 6 under the 

"Historical Background-Procedural History" section (Historical), 

FOF 22 under the "Concurrent Planning-Order to Show Cause 

Hearing" section (Concurrent Planning), and FOF 9, 20, and 21 of 

the "Termination of Parental Rights Hearing" section (TPR) of 

the FOF/COL. (Formatting altered.) Mother then contends that 

the family court abused its discretion by finding that 

Petitioner-Appellee Department of Human Services (DHS) made 

reasonable efforts to reunify Mother with Children, Mother was 

unable to provide Children with a safe family home with the 

assistance of a service plan, and the proposed permanent plan 

was in Children's best interests.

Upon careful review of the record and the briefs 

submitted by the parties and having given due consideration to 

the issues raised and arguments advanced, we resolve Mother's 

points of error as discussed below, and affirm.
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

3

I. Background

On August 8 and September 29, 2017, DHS filed 

petitions for temporary foster custody of Children based on 

Mother's inability to provide Children with adequate food, 

clothing, supervision, psychological,3 physical, or medical care. 

JM was two years old and AM was one month old when they entered 

foster custody on October 5, 2017.

To regain custody of Children, Mother agreed to 

complete substance abuse treatment, parenting education, and 

individual counseling. Mother greatly progressed on the 

services, and DHS reunified Mother and Children under family 

supervision on December 24, 2018.

On August 8, 2019, DHS again removed Children from 

Mother due to unsanitary living conditions, lack of 

participation in services, failure to provide Children adequate 

food and water, concerns of drug use, incidents of domestic 

violence between Mother and her boyfriend (Boyfriend), including 

one in which Boyfriend struck JM, and failure to supervise 

Children, including an incident of Children wandering away from 

Mother's home without her knowledge. DHS placed Children with 

paternal grandmother. On August 21, 2019, the family court reawarded foster custody of Children to DHS.

3 DHS' petition regarding AM notes "Mother has not provided her child 

with . . . psychological . . . care." However, DHS' petition regarding JM 

does not note a failure to provide psychological care.
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

4

On February 6, 2020, DHS filed, among other things, an 

initial permanent plan (Permanent Plan 1), which contemplated 

termination of parental rights and permanent placement of 

Children with paternal grandmother. On March 6, 2020, the 

family court set the matters for a termination of parental 

rights hearing, but granted Mother multiple continuances.

During this time, DHS provided Mother with parenting 

education and individual counseling services. DHS also 

organized supervised visitation between Mother and Children, and 

filed periodic safe family home reports, which, among other 

things, documented an allegation of sexual abuse by Boyfriend 

against JM.

On July 15, 2021, DHS filed an updated permanent plan 

reflecting Children's removal from paternal grandmother's home, 

placement with resource caregivers (RCGs), and anticipated 

permanent placement of Children with RCGs (Permanent Plan 2). 

Additionally, DHS filed an updated service plan for Mother, 

which listed individual counseling as the sole remaining service 

for Mother to complete, but noted that Mother was discharged 

from counseling on June 3, 2021.

On July 15, August 26, October 7, and November 7, 

2021, the family court held a single termination of parental 

rights trial for both proceedings. DHS case manager Lisa Cook 

(Cook) testified, in relevant part, that Mother completed 

services, however based on her observations, Mother remained 
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

5

unable to redirect Children's behavior away from dangerous 

activities such as running away and hitting, and opined that 

Mother could not supervise and protect Children without the 

intervention of other parties. Cook also testified that Mother 

had been in and out of services for about four years, but was 

unable to demonstrate that she could implement skills taught at 

services.

Mother's therapist, Orie Lutwin (Lutwin) testified in 

relevant part, that Mother completed counseling, reported no 

domestic violence by Boyfriend, and mentioned an allegation of 

sexual abuse by Boyfriend against JM, however they did not cover 

the topic of sexual abuse during therapy. With respect to 

domestic violence, Lutwin testified that they covered the topic 

of "power and control dynamic in a relationship."

Parent educator Shenella Asuncion (Asuncion) testified 

in relevant part, that she taught Mother parenting classes, 

which Mother completed, and did one-on-one parenting support 

with Mother. Asuncion also testified that Mother told her 

domestic violence was not an issue, and based on her 

interactions with Mother, Asuncion was under the impression that 

Mother was not in a romantic relationship. Asuncion stated she 

did not address protecting Children from sexual abuse with 

Mother.
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

6 

 Mother testified in relevant part, that there was no 

domestic violence in her relationship with Boyfriend, she did 

not discuss domestic violence with Lutwin because she felt it 

was a "done issue," and she did not bring up domestic violence 

incidents with Asuncion. Mother did not testify regarding 

allegations of sexual abuse by Boyfriend against JM. 

 After considering the evidence and arguments 

presented, the family court terminated Mother's and Father's 

parental rights.

II. Standards of Review 

 "Generally, the family court possesses wide discretion 

in making its decisions and those decisions will not be set 

aside unless there is a manifest abuse of discretion." In re 

Doe, 95 Hawai‘i 183, 189, 20 P.3d 616, 622 (2001) (internal 

quotation marks omitted) (quoting In re Doe, 84 Hawai‘i 41, 46, 

928 P.2d 883, 888 (1996)). 

 We review the family court's FOF for clear error. In 

re Doe, 95 Hawai‘i at 190, 20 P.3d at 623. 

A FOF "is clearly erroneous when (1) the record lacks 

substantial evidence to support the finding, or (2) despite 

substantial evidence in support of the finding, the 

appellate court is nonetheless left with a definite and 

firm conviction that a mistake has been made." . . . 

"'Substantial evidence' is credible evidence which is of 

sufficient quality and probative value to enable a person 

of reasonable caution to support a conclusion."
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

7 

Id. (citations and ellipsis omitted). Unchallenged findings of 

fact are binding on appeal. In re Doe, 99 Hawai‘i 522, 538, 57 

P.3d 447, 463 (2002). 

III. Discussion

 (1) In her first point of error, Mother claims that 

Historical FOF 6, Concurrent Planning FOF 22, and TPR FOF 9, 20, 

and 21 are clearly erroneous. We address each in turn. 

 Mother argues that Historical FOF 6 is clearly 

erroneous because "[t]o the extent an issue exists as to whether 

Mother is able to adequately supervise her Children and protect 

them from dangerous situations, it exists because Mother was not 

afforded an opportunity by the DHS to resolve it." Historical 

FOF 6 states:

6. The Court finds that the issue is whether mother is 

able to adequately supervise her children and to 

recognize and protect them from dangerous situations, 

including future harm or threat of harm.

 As a threshold matter, Mother's argument fails to 

demonstrate that Historical FOF 6 is clearly erroneous because 

she purports to explain the reason for the factual finding, 

rather than demonstrate it is in error. 

 In any event, Historical FOF 6 is supported by 

Historical FOF 7-9 and TPR FOF 13,4 which corroborate DHS' 

4 Historical FOF 7-9 state:

7. The Court finds the GAL in her report filed July 14, 

2021 noted concerns about mother's ability to supervise 

the children.

(continued . . .)
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

8

concerns about Mother's ability to supervise and protect 

Children. Additionally, the record reflects that DHS raised 

inadequate supervision and protection of Children as initial 

safety concerns, re-emergence of these safety concerns caused 

DHS to remove Children again on August 8, 2019, and these safety 

concerns remained unresolved throughout the remaining 

proceedings. Thus, substantial evidence supports Historical FOF 

6, and we are not left with a definite and firm conviction that 

a mistake has been made.

Mother argues that Concurrent Planning FOF 22 is 

clearly erroneous because Mother made significant progress on 

her service plan prior to March 29, 2018. Concurrent Planning 

FOF 22 states:

22. At the review hearing on March 29, 2018, Parents had 

made little progress and the matter was scheduled for 

Order to Show Cause Hearing on June 7, 2018, to 

determine whether the matter should be set for 

termination of parental rights. (Order Continuing 

Foster Custody of [JM] filed on April 12, 2018).

(. . . continued)

8. The Court further finds that the DHS warned mother to 

not allow [Boyfriend] to have access to the children 

because of [JM]'s allegation [Boyfriend] sexually abused 

her.

9. The Court finds that despite DHS' warnings to mother, 

mother added [Boyfriend] to her residential lease as a 

co-tenant.

TPR FOF 13 states: "On August 26, 2021, Ms. Cook testified that she spoke to 

[Mother] about [Boyfriend] sexually abusing [JM], and the very next day, 

[Boyfriend] was added as a co-tenant to Mother's residential lease."
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

9

The record reflects that, on March 29, 2018, the 

family court recognized Mother made some progress on the service 

plan, but declined to find that she made sufficient progress on 

the service plan given Children's young age, and scheduled an 

order to show cause hearing. Thus, the record contains 

substantial evidence to support the "little progress" finding in 

Concurrent Planning FOF 22, and we are not left with a definite 

and firm conviction that a mistake has been made.

Mother argues TPR FOF 9 is clearly erroneous because 

DHS did not provide Mother the opportunity to "show that she had 

achieved the ability to react quickly to the needs of her 

Children." TPR FOF 9 states:

9. Despite individual counseling being ordered in the 

Family Service Plan, [Mother] never achieved the 

ability to react quickly to the needs of her children, 

and therefore visits continue to be supervised four 

years later because Mother's ability to supervise the 

children is an ongoing safety issue.

Mother, however, fails to demonstrate that TPR FOF 9 

is clearly erroneous. At best, Mother purports to explain the 

reason for the factual finding, rather than demonstrate it is in 

error. In any event, substantial evidence supports TPR FOF 9, 

and we are not left with a definite and firm conviction that a 

mistake has been made. Therefore, TPR FOF 9 is not clearly 

erroneous.

Mother argues that TPR FOF 20 is clearly erroneous 

because some visitation observation notes show that Children 

listen to her directions. Additionally, Mother argues that the 
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

10

quoted language in TPR FOF 20 does not show that she is unable 

to manage Children. TPR FOF 20 states: 

20. After three years of supervised visitation, parent 

education, hands on coaching during the visits, and 

individual counseling, the children continue to run 

away from Mother, and do not follow her instructions, 

"When [JM] was on the playground [JM] jumped from the 

top of the slide down to the ground while mom stood 

watching the girls play. Then [JM] climbed once again 

to the top of the slide and the worker told [JM] to 

get down because it's dangerous. [JM] listened to the 

worker."

 Mother correctly asserts that some visitation notes 

reflect Children listening to Mother's instructions. 

Additionally, Mother correctly asserts that the quoted language 

in TPR FOF 20 does not support a finding that Children do not 

follow Mother's instructions. This being said, the record 

confirms that Children running away from Mother remained a 

recurring safety issue. Even if TPR FOF 20 is clearly erroneous 

in part, the error is harmless because it does not undermine the 

reason upon which the family court terminated Mother's parental 

rights, namely Mother's inability to adequately supervise and 

protect Children, which is supported by the record. See 

discussion of Historical FOF 6 supra at 7-8. As such, to the 

extent TPR FOF 20 is erroneous, it does not provide a ground to 

vacate the TPR Orders. Hawai‘i Family Court Rules (HFCR) Rule 61 

("No . . . error or defect in any . . . order or in anything 

done or omitted by the court . . . is ground for . . . vacating, 

modifying, or otherwise disturbing a judgment or order, unless 
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

11

refusal to take such action appears to the court inconsistent 

with substantial justice").

Mother argues TPR FOF 21 is clearly erroneous because 

she completed individual counseling. TPR FOF 21 states:

21. Individual Counseling was ordered for Mother in the 

Order Continuing Foster Custody, dated July 15, 2021, 

it is the remaining and outstanding Service Plan item 

for Mother.

The record reflects that Lutwin discharged Mother from 

counseling on June 3, 2021. Additionally, Cook testified that 

Mother completed services. As such, the record lacks 

substantial evidence to support TPR FOF 21 and it is thus 

clearly erroneous. This error, however, is harmless because the 

family court recognized that Mother substantially complied with 

the service plan, but nonetheless concluded based on the court's 

findings that Mother was unable to provide Children with a safe 

family home. As such, TPR FOF 21 does not provide a ground to 

vacate the TPR Orders. HFCR Rule 61.

(2) In her second point of error, Mother claims the 

family court abused its discretion by finding that "DHS made 

reasonable efforts to finalize the initial permanency plan, 

which was reunification." Mother identifies the July 20, 2021 

orders continuing DHS foster custody over Children (Foster 

Custody Orders) as the source of this point of error, and cites 

to HFCR Rule 46 as the basis for her ability to appeal the 
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

12

Foster Custody Orders.5 Mother argues that, after DHS re-assumed 

foster custody of Children, DHS failed to offer her domestic 

violence and sexual abuse services, and failed to provide her 

opportunities to apply skills learned from services, therefore 

DHS failed to provide reasonable reunification efforts. 

 As an initial matter, HFCR Rule 46 is inapplicable 

because Mother had the opportunity to object to the family 

court's "reasonable efforts" findings at the July 15, 2021 

hearing or by appealing from the Foster Custody Orders, but 

failed to do so. In re Doe, 77 Hawai‘i 109, 114-15, 883 P.2d 30, 

35-36 (1994) (allowing immediate appeal of family court 

decisions that impact custody over a child); Rules Expediting 

Child Protective Appeals Rule 3 (setting forth a fifteen-day 

deadline to appeal appealable orders, or allowing appeal within 

thirty-days with a showing of good cause as per appellate 

rules). 

 In any event, the record in this case reflects that 

DHS provided Mother reasonable opportunities to reunify with 

5 HFCR Rule 46 provides: 

Formal exceptions to rulings or orders of court are 

unnecessary; but for all purposes for which an exception 

has heretofore been necessary it is sufficient that a 

party, at the time the ruling or order of the court is made 

or sought, makes known to the court the action that the 

party desires the court to take or the party's objection to 

the action of the court and grounds therefor; and, if a 

party has no opportunity to object to a ruling or order at 

the time it is made, the absence of an objection does not 

thereafter prejudice the party. 

(Emphasis added.)
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

13

Children. The record also indicates Mother was unable to 

demonstrate that she could apply what she learned from the 

services provided and declined to discuss domestic violence with 

Lutwin and Asuncion. Based on this record, we cannot say that 

the Family Court abused its discretion.

(3) In her third point of error, Mother claims the 

family court abused its discretion by finding that Mother was 

unable to provide Children a safe family home. Mother 

identifies Historical FOF 1 and 26 and the TPR Orders as the 

basis for this point of error. Mother argues Historical FOF 1 

and 2 are clearly erroneous because DHS failed to provide her 

the opportunity to demonstrate her ability to provide a safe 

family home.

Mother purports to explain the reason for the factual 

findings, rather than demonstrate they are in error. The record 

reflects that DHS provided Mother with reasonable opportunities 

6 Historical FOF 1 and 2 state:

1. Having considered the testimony presented, the records 

and files herein, and the written closing arguments 

submitted by Mr. Goo, Mrs. Meyers, and Mr. Morimoto this 

Court finds by clear and convincing evidence that 

mother, . . . , and father, . . . , are not willing and 

able to provide a safe family home for their two 

children, . . . , even with the assistance of a service 

plan.

2. This Court further finds by clear and convincing 

evidence that it is not reasonably foreseeable that the 

parents will become willing and able to provide the 

children with a safe home, even with the assistance of a 

service plan within a reasonable period of time.
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

14

to reunify with Children. Therefore, we cannot say that the 

court abused its discretion in regards to this point.

(4) Finally, in her fourth point of error, Mother 

claims the family court abused its discretion by finding that 

Permanent Plan 2 was in Children's best interests. Mother 

argues that Permanent Plan 2 falsely states that DHS "continued 

to provide a service plan and referrals as needed[,]" and the 

safety issues DHS identified in 2017 remained unresolved. 

Additionally, Mother alleges DHS failed to consider placing 

Children with her parents.

Here, evidence of services, safety issues, and 

placement with maternal grandparents were before the family 

court. In 2017, JM was two years old and AM was one month old 

when they entered foster custody. Due to Mother's progression 

with services, DHS reunified Mother and Children under family 

supervision in 2018. But, in 2019, DHS removed Children because 

of unsanitary living conditions, failure to provide Children 

adequate food and water, failure to supervise Children 

(including an incident of Children wandering away from Mother's 

home without her knowledge), incidents of domestic violence 

between Mother and Boyfriend (including one in which Boyfriend

struck JM), concerns of drug use, and lack of participation in 

services.
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

15

The January 9, 2020 safe family home report stated 

among other things:

[Mother] is believed to be sober. She completed one urine 

test just after the children were removed in August. The 

UA was negative for all substances. The DHS concerns were 

that [Mother's] behaviors regarding the children may have 

been related to her having relapsed but it appears this is 

not the case. Her inability to follow through with 

scheduling medical appointments, cleaning the house to the 

point where it was at least sanitary, and her relationship 

with a violent partner were decisions she made while sober. 

The children were often unsupervised in the neighborhood 

while [Mother] was sober.

The report also noted Boyfriend transported Mother to and from 

supervised visits with Children and remained in his car during 

the visits, Mother's visits were often shorter than the time 

allowed, Mother was late for visits with Children, and JM 

reported being sexually abused by Boyfriend. DHS warned Mother 

not to allow Boyfriend to have access to JM due to allegations 

of sexual abuse, but Mother added Boyfriend to her residential 

lease as a co-tenant.

Moreover, when JM was residing with maternal 

grandparents pursuant to a safety plan, Mother violated the 

safety plan by resuming care of JM. And after AM was born, 

police officers "stated they did not feel the Maternal 

Grandparent's home would be a suitable environment for an 

infant[,]" as police "frequently responded to incidents at this 

home."

Based on the record in this case, we cannot say the 

family court was clearly erroneous in concluding that the 

"proposed permanent plan of termination of parental rights and 
NOT FOR PUBLICATION IN WEST'S HAWAIʻ

I REPORTS AND PACIFIC REPORTER

16

the goal for children [to be] placed for adoption is in the best 

interest of the children."

IV. Conclusion

For the reasons discussed above, we affirm the family 

court's (1) January 3, 2022 order terminating parental rights as 

to JM, entered in FC-S No. 17-00020, and (2) January 3, 2022 

order terminating parental rights as to AM, entered in FC-S 

No. 17-00023.

DATED: Honolulu, Hawai‘i, March 31, 2023

On the briefs:

Casey M. Hutnick,

for Mother-Appellant.

Russell K. Goo,

Patrick A. Pascual,

Regina Anne M. Shimada, and

Julio C. Herrera,

Deputy Attorneys General,

for Petitioner-Appellee.

/s/ Clyde J. Wadsworth

Presiding Judge

/s/ Sonja M.P. McCullen

Associate Judge

/s/ Derrick H.M. Chan

Associate Judge