Oral Argument Before the Hawaii Supreme Court — No. SCWC-18-0000773
No. SCWC-18-0000773, Friday, October 2, 2020, 11:15 a.m.
IN THE INTEREST OF LI and HDK.
The above-captioned case has been set for argument on the merits at:
The oral argument was held remotely and was livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts
Attorney for Petitioner-Mother:
Michael A. Glenn
Attorneys for Respondent-DHS:
Adriel C.S. Menor, Patrick A. Pascual, Ian T. Tsuda, and Julio C. Herrera, Deputy Attorneys General
NOTE: Certificate of Recusal, by Associate Justice Richard W. Pollack, filed 06/17/20.
NOTE: Order assigning Circuit Court Judge Lisa W. Cataldo, in place of Pollack, J., recused, filed 06/17/20.
NOTE: Order accepting Application for Writ of Certiorari, filed 08/05/20.
COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Cataldo, in place of Pollack, J., recused.
This case arises from the Family Court of the Second Circuit’s appointment of counsel for petitioner/appellant Mother during proceedings that culminated in the termination of her parental rights as to children L.I. and H.D.K.
The Department of Human Services (“DHS”) filed a petition for family supervision of Mother’s then-only child, L.I., on June 13, 2014. Mother subsequently consented to family supervision of L.I. At a hearing on January 13, 2015 the Family Court of the Second Circuit granted a DHS petition to place L.I. in foster custody without appointing counsel for Mother. Mother, who was indigent, was not appointed counsel until nearly 100 days after DHS had been granted foster custody of L.I.
Mother asserts that the Family Court erred by failing to appoint counsel for her prior to granting foster custody of L.I. to DHS. As a remedy, Mother requests a new trial to determine the custody issue.
Additionally, Mother asks this court to clarify an ambiguity as to the timing of the appointment of counsel for indigent parents. Following this court’s opinion in In re T.M., 131 Hawai‘i 419, 319 P.3d 338 (2014), parents have a constitutional right to counsel in parental termination proceedings. In re T.M., however, contains conflicting guidance as to the timing of the appointment of counsel because it states both that counsel must be appointed (1) upon the filing of a petition for custody of a child and (2) upon the granting of such a petition.