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Oral Argument Before the Hawaii Supreme Court — SCWC-21-0000283 consolidated with SCWC-21-0000316

Thursday, August 18, 2022 – 10 a.m
No. SCWC-21-0000283, In the Interest of JB.
No. SCWC-21-0000316, In the Interest of JH.

The above-captioned cases was consolidated for oral argument on the merits at:

Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorneys in SCWC-21-0000283, In re: JB

Francis T. O’Brien and Brett A. Ritter
(for Petitioners/Resource Caregivers-Intervenors-Appellees)

Kellie M. Kersten, Julio C. Herrera, Patrick A. Pascual and Erin K.S. Torres, Deputy Attorneys General
(for Petitioner/Petitioner-Appellee/Cross-Appellee The Department of Human Services)

Herbert Y. Hamada
(for Respondent/Father-Appellee/Cross-Appellant)

Crystal M. Asano
(for Respondent/Mother-Appellant/Cross-Appellee)

Emily M. Hills of Legal Aid Society of Hawaiʻi
(for Respondent/Appellee/Cross-Appellee Guardian Ad Litem)

Attorneys in SCWC-21-0000316, In re: JH

Abigail S. Dunn Apana, Julio C. Herrera, Patrick A. Pascual, Regina Anne M. Shimada, Deputy Attorneys General
(for Petitioner/Petitioner-Appellee/Cross-Appellee The Department of Human Services)

Herbert Y. Hamada
(for Respondent/Father-Appellant/Cross-Appellee)

Tae Chin Kim
(for Respondent/Mother-Cross-Appellant/Cross-Appellee)

Michelle K. Moorhead and Emily M. Hills of Legal Aid Society
(for Respondent/Appellee/Cross-Appellee Guardian Ad Litem)

NOTE: Orders accepting Application for Writ of Certiorari, filed 06/22/22 (in SCWC-21-0000283) and 6/24/22 (in SCWC-21-0000316).

NOTE: Order consolidating oral argument, filed 07/05/22.

COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.

Listen to the entire audio recording in mp3 formatNote: Due to a technical error, there is no sound from minutes 55:36 – 56:47 of this recording.

Brief Descriptions:

SCWC-21-283, In re JB
On May 12, 2017, the State of Hawaiʻi, Department of Human Services (“DHS”) petitioned for temporary foster custody of JB in the Family Court of the First Circuit (“family court”). On May 16, 2017, the family court appointed both parents counsel at the initial hearing on the petition. Father was defaulted by the family court after he failed to appear at a November 2, 2017 hearing. The family court waived notice of future hearings for Father based on his default. On April 17, 2018, the family court discharged Father’s counsel after Father continued to fail to appear. In July 2019, DHS moved to terminate the parental rights of Mother and Father. After a trial, the family court granted DHS’ motion to terminate parental rights as to both Mother and Father. On appeal, the Intermediate Court of Appeals (“ICA”) held that it was structural error to discharge Father’s court-appointed counsel during the pendency of the termination of parental rights proceeding. Resource Caregivers-Intervenors and DHS (“petitioners”) both filed applications for writ of certiorari.

On certiorari, petitioners argue that the ICA impermissibly expanded the Hawaiʻi Supreme Courts’ holdings in In re T.M., 131 Hawaiʻi 419, 319 P.3d 338 (2014) and In re L.I., 149 Hawaiʻi 118, 482 P.3d 1079 (2021) by holding that the discharge of counsel is structural error necessitating vacatur of the order terminating parental rights. DHS argues that the discharge of counsel during the pendency of termination proceedings should be decided according to the “fundamental fairness” standard employed by the Hawaiʻi Supreme Court in deciding whether a parent was denied the effective assistance of counsel, as in In re RGB, 123 Hawaiʻi 1, 25, 229 P.3d 1066, 1090 (2010). Petitioners also point to the Child Protective Act’s two-year time frame for parents to become willing and able to provide a safe family home, which has already passed. If the discharge of counsel during the pendency of termination of parental rights proceedings is structural error, petitioners seek clarity on how the structural error is to be cured.

SCWC-21-316, In re JH
In this Child Protective Act case, the State of Hawai‘i, Department of Human Services (DHS) challenges the Intermediate Court of Appeals’ Summary Disposition Order vacating the family court’s order terminating Mother and Father’s parental rights.

DHS petitioned for temporary foster custody (TFC) of JH in October 2018, and the court appointed both parents counsel at the initial hearing on the petition. After neither parent appeared at a scheduled continued hearing in August 2019, the family court defaulted Mother and Father, waived notice of future hearings, and discharged both parents’ counsel. The court ordered Mother and Father to appear at a periodic review hearing in January 2020. A week before the periodic review hearing, DHS moved to terminate Mother and Father’s parental rights. The court scheduled the motion to terminate parental rights (MTPR) on the same date of the periodic review hearing. Mother and Father appeared at the January 2020 hearing, so the court reappointed their counsel and rescheduled the MTPR trial. In April 2021, the family court granted DHS’s MTPR. JH’s parents appealed to the ICA, which held that the family court erred by discharging the parents’ counsel during the pendency of the TPR proceeding.

On certiorari, DHS contends that the ICA gravely erred when it vacated the family court’s TPR order because its reliance on our case law is “misplaced.” DHS maintains that the ICA improperly relied on In re T.M., 131 Hawaiʻi 419, 319 P.3d 338 (2014) and In re L.I., 149 Hawaiʻi 118, 482 P.3d 1079 (2021) — both of which held that the failure to timely appoint counsel is structural error requiring vacatur. DHS argues, the ICA should have found the proceedings were fundamentally fair. Further, DHS maintains that if structural error did happen, automatic reversal is not required and would be inappropriate. DHS and JH’s Guardian Ad-Litem point out that the Child Protective Act’s two-year time frame for parents to become willing and able to provide a safe family home has already passed. Thus, they seek clarity on how the family court should operate on remand.