No. 30387 – Wednesday, October 13, 2010 at 10 a.m.

IN THE INTEREST OF T.W.

Attorney(s) for Mother-Appellant
Randal I. Shintani

Attorney(s) for Petitioner-Appellee Dep’t of Human Services
Mark J. Bennett, Attorney General, Mary Anne Magnier, Deputy Attorney General, and Deirdre Marie-Iha, Deputy Solicitor General

COURT:    Nakamura, CJ; Foley and Fujise, JJ.

SPECIAL NOTE:    The above argument will take place in the Supreme Court courtroom on the Second Floor of Aliʻiolani Hale, 417 South King Street, Honolulu, Hawaii.

[ Listen to the entire audio recording in mp3 format ]

Brief description:

Mother-Appellant appeals orders issued by the Family Court of the First Circuit (family court) which terminated Mother’s parental rights and awarded permanent custody of her child (Child) to the Department of Human Services (DHS).  On December 16, 2009, the DHS filed a “Motion for Order Awarding Permanent Custody and Establishing a Permanent Plan” (Permanent Custody Motion), seeking to terminate Mother’s parental rights over Child and award permanent custody of Child to the DHS.  Mother failed to appear in court on December 22, 2009, for a hearing on the Permanent Custody Motion, and the family court entered default against Mother and granted the motion.  Mother asserts that she had appeared at every court hearing except the December 22, 2009, hearing on the Permanent Custody Motion.  Mother filed a motion to set aside the default entered against her, which the family court denied.

On appeal, Mother argues that: (1) the family court abused its discretion in granting the Permanent Custody Motion and in not continuing the motion, as Mother was not served with the motion; (2) the family court abused its discretion in denying Mother’s motion to set aside the default; (3) Mother’s due process rights were violated when the family court granted the Permanent Custody Motion and denied Mother’s motion to set aside the default; and (4) the family court erred in finding that Mother was not presently able, and it was not reasonably foreseeable that she would become able, to provide Child with a safe family home, even with the assistance of a service plan.