No. SCWC-22-0000636, Thursday, August 29, 2024, 2 p.m.

IN THE INTEREST OF THE P CHILDREN

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The above-captioned case has been set for oral argument on the merits. 

The oral argument will be held remotely and will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Olelo at olelo.org/tv-schedule/.

Attorney for Petitioner/Respondent-Appellee NICOLE FORELLI in her capacity as guardian ad litem:  

     Eitan Arom, Appellate Pro Bono Program, Gibson, Dunn, Crutcher LLP

Attorneys for Respondent/Petitioner-Appellee THE DEPARTMENT OF HUMAN SERVICES:  

     Terence Y. Herndon, Julio C. Herrera, Patrick A. Pascual, and Abigail S. Dunn Apana, Deputy Attorneys General

Attorney for Respondent/Mother-Appellant:
     Matthew Mannisto of Law Office of Matthew Mannisto

NOTE:     Order accepting Application for Writ of Certiorari, filed 12/07/23.

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 02/12/24.

NOTE:     Order assigning Circuit Judge Henry T. Nakamoto in place of Ginoza, J., recused, filed 03/05/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, and Devens, JJ., and Circuit Judge Nakamoto in place of Ginoza, J., recused

Brief Description:

The issue in this Child Protective Act case is whether the failure to appoint an absent party counsel at the initial hearings constitutes structural error requiring vacatur.

The Department of Human Services filed a petition for family supervision with Mother’s two children upon reports of threatened abuse and neglect. Mother did not appear for the first 5.5 months of the case. No attorney was appointed for her. In her absence, the Family Court of the Second Circuit awarded DHS foster custody. Once Mother appeared, the court appointed her counsel who represented her for the years long duration of the case. Mother was awarded family supervision for a year before the court reinstated foster custody. Almost three years after DHS filed the initial petition, DHS filed a motion to terminate parental rights. Eventually, the family court terminated Mother’s parental rights. It found the permanent plan with the goal of adoption was in the best interests of the children.

On appeal, after supplemental briefing, the ICA held that the failure to appoint Mother counsel for the period of time between the first hearing and until she appeared and received counsel (a total of 144 days) was structural error requiring vacatur of orders affecting custody of the children.