Opinion
SCWC-21-0000316
03-15-2023
In the INTEREST OF JH
Kelly M. Kersten, (Abigail S. Dunn Apana, Julio Cesar Herrera, Patrick A. Pascual, Regina Anne M. Shimada, on the briefs), for petitioner Department of, Human Services Emily E.M. Hills, for Guardian Ad Litem Clint K. Hamada and Herbert Y. Hamada, Honolulu, for Father
Kelly M. Kersten, (Abigail S. Dunn Apana, Julio Cesar Herrera, Patrick A. Pascual, Regina Anne M. Shimada, on the briefs), for petitioner Department of, Human Services
Emily E.M. Hills, for Guardian Ad Litem
Clint K. Hamada and Herbert Y. Hamada, Honolulu, for Father
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ.; AND WILSON, J., DISSENTING
At the time of this opinion's publication, Justice Wilson's dissent is forthcoming.
OPINION OF THE COURT BY EDDINS, J.
[152 Hawai'i 376]
At the start of this Child Protective Act case, the Family Court of the First Circuit appointed attorneys for a mother and father (Parents). Then, when Parents failed to appear at a court hearing, the court discharged counsel. Later, Parents reappeared, the court reappointed counsel, and the case progressed. After a trial, the family court terminated Parents’ parental rights.
Because the family court discharged Parents’ counsel before the case had ended, the Intermediate Court of Appeals (ICA) ruled that structural error occurred. It ordered a new trial.
A family court must timely appoint counsel in parental rights cases. Otherwise, structural error will nullify an outcome adverse to a parent. But the appointment, discharge, and reappointment of counsel is different.
We hold that if the family court appoints counsel at the onset of a parental rights case, and later there's a break in representation due to a parent's voluntary absence, then there is no structural error. As long as a fundamentally fair procedure ensues and due process is satisfied, the family court's decision will stand.
I.
JH was born in October 2018. Soon after his birth, the Department of Human Services (DHS) assumed custody of JH under the Child Protective Act, Hawai‘i Revised Statutes (HRS) §§ 587A-8 and 587A-9. Then
At birth, JH tested positive for unprescribed opiates. While hospitalized in the Neonatal Intensive Care Unit at Kapi‘olani Medical Center, JH was taken into police protective custody. See HRS § 587A-8 (2018):
(a) A police officer shall assume protective custody of a child without a court order and without the consent of the child's family, if in the discretion of the police officer, the officer determines that:
(1) The child is subject to imminent harm while in the custody of the child's family;
....
(4) The child's parent has subjected the child to harm or threatened harm and the parent is likely to flee with the child.
(b) The department shall assume temporary foster custody of the child when a police officer has completed the transfer of protective custody of the child to the department as follows:
....
(2) If the child is or will be admitted to a hospital or similar institution, the police officer shall immediately complete the transfer of protective custody to the department by notifying the department and receiving an acknowledgment from the hospital or similar institution that it has been informed that the child is under the temporary foster custody of the department.
Then, under HRS § 587A-9 (2018), DHS assumed temporary foster custody of JH.
(a) When the department receives protective custody of a child from the police, the department shall:
(1) Assume temporary foster custody of the child if, in the discretion of the department, the department determines that the child is subject to imminent harm while in the custody of the child's family; [and]
....
(5) Within three days, excluding Saturdays, Sundays, and holidays:
(A) Relinquish temporary foster custody, return the child to the child's parents, and proceed pursuant to section 587A-11(4), (5), or (6);
(B) Secure a voluntary placement agreement from the child's parents to place the child in foster care, and proceed pursuant to section 587A-11(6) or (8); or
(C) File a petition with the court.
[152 Hawai'i 377] DHS petitioned for temporary foster custody.
The family court appointed counsel for both parents at the first hearing on DHS's petition.
In July 2019, at a continued hearing, the court ordered Mother and Father to appear at a further hearing in 20 days. The court cautioned Parents: if they didn't appear on that date, August 14, then the court could order a default judgment, decide the petition, and award foster custody of JH to DHS.
Neither parent showed on August 14, 2019. The court entered default judgments against Parents, waived their notice of future hearings, and discharged their counsel effective August 31, 2019. The court advised counsel that if Parents contacted them, then counsel could file an ex parte motion to rescind the discharge order. The court also ordered the parents to appear at a periodic review hearing on January 21, 2020.
The Honorable Brian A. Costa presided.
One week before the scheduled periodic review hearing, DHS moved to terminate Mother and Father's parental rights. The court scheduled this motion on the date of the periodic review hearing.
Mother and Father appeared on January 21, 2020. So did counsel. Parents requested a trial on DHS's motion to terminate parental rights. Due to COVID-19 concerns and scheduling conflicts, the court continued the trial date several times.
Parents appeared with their counsel at the periodic review hearing before the Honorable John C. Bryant. Nothing in the record, however, reflects that the court reappointed counsel. There is also nothing in the record – order-wise or otherwise - to reflect that Parents moved to set aside their default. Instead, the proceedings just resumed as if the court had not discharged Parents’ attorneys and defaulted Parents. The family court and all parties - Mother, Father, DHS, and JH's Guardian Ad Litem - proceeded as if Parents’ counsel had been reappointed. This opinion likewise treats Parents’ appearance with their attorneys as a reappointment of counsel.
The trial on DHS's motion to terminate parental rights began nearly a year later, on January 7, 2021. Trial also happened on February 4, 2021 and March 30, 2021. The parents, represented by counsel, appeared each day of their trial.
The Honorable Andrew T. Park presided over the trial.
On April 26, 2021, the family court granted DHS's motion. The court terminated Mother and Father's parental rights. It awarded DHS permanent custody of JH. The court made the necessary findings under HRS § 587A-33(a). It also issued a termination of parental rights order, letters of permanent custody, and Findings of Fact and Conclusions of Law.
HRS § 587A-33(a) (2018) reads:
(a) At a termination of parental rights hearing, the court shall determine whether there exists clear and convincing evidence that:
(1) A child's parent whose rights are subject to termination is not presently willing and able to provide the parent's child with a safe family home, even with the assistance of a service plan;
(2) It is not reasonably foreseeable that the child's parent whose rights are subject to termination will become willing and able to provide the child with a safe family home, even with the assistance of a service plan, within a reasonable period of time, which shall not exceed two years from the child's date of entry into foster care ....
Parents appealed. The ICA ordered supplemental briefing. It asked the parties to brief whether its holding in In the Interest of J.M. and Z.M., 150 Hawai‘i 125, 497 P.3d 140 (App. 2021) applied. That is, does the discharge of counsel during parental rights proceedings violate a parent's due process rights and amount to structural error?
The ICA vacated the family court's parental termination order and remanded for a new trial. As with In re J.M., it found structural error because the court discharged Parents’
[152 Hawai'i 378] counsel before the Child Protective Act proceedings had ended.
We accepted DHS's cert application. DHS argues that there is no structural error. DHS maintains that despite the discharge of Parents’ counsel and the five-month gap in representation, Parents received a fundamentally fair trial; due process was satisfied.
II.
Parents have a substantive liberty interest to parent their child. Haw. Const. art. I, § 5. They have a fundamental right to care, control, and have custody of their children. In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002).
Parents faced with losing their parental rights have a right to counsel under the Hawai‘i Constitution's far-reaching due process clause. In re T.M., 131 Hawai‘i 419, 434, 319 P.3d 338, 353 (2014). An indigent parent's right to counsel kicks in when parental rights are substantially affected. See In re L.I., 149 Hawai‘i 118, 122, 482 P.3d 1079, 1083 (2021).
T.M. and L.I. involve the family court's failure to timely appoint counsel. We have not addressed what happens after a court appoints counsel at the start of Child Protective Act (CPA) proceedings and later there's a gap in representation due to a parent's failure to appear in court.
Here, the ICA ordered a retrial. Citing T.M., L.I., and In re J.M., it believed the family court violated Parents’ article I, section 5 due process right to counsel when it discharged appointed counsel. The error is structural, said the ICA. So Parents did not have to show that the court's discharge of counsel harmed them; the gap in Parents’ legal representation was enough to vacate the order terminating their parental rights. We disagree.
There is no structural error.
T.M. and L.I. do not require automatic reversal for structural error when an indigent parent is not from start to finish represented by court-appointed counsel in CPA proceedings.
First, the ICA blends a failure to timely appoint counsel and a discharge of counsel. This case differs from T.M. and L.I. In those cases the family court belatedly appointed counsel for indigent parents.
In T.M., all parties had counsel throughout the CPA proceedings. But not TM's 15-year old mother. The court appointed counsel 19 months after DHS petitioned for temporary foster custody, about five months before the hearing that terminated her parental rights. Without counsel, TM's mother had no legal advocate "to inform her of the limitations of the guardianship approach and of the possibility that if other options were pursued, her parental rights would be in jeopardy"; "advise her of significant deadlines" (like the two-year cutoff to provide a safe family home); or provide "necessary assistance to prepare for the ... termination hearing." T.M., 131 Hawai‘i at 432-33, 319 P.3d at 351-52. Mother may have kept her parental rights had the court appointed counsel sooner. Id. at 433, 319 P.3d at 352.
T.M. held that courts must appoint counsel to indigent parents once DHS petitions for custody. Requiring the family court to appoint counsel "remove[d] the vagaries of a case-by-case approach." T.M., 131 Hawai‘i at 435, 319 P.3d at 354. A right to counsel was established.
Then in L.I., the court held that the failure to timely appoint counsel in cases that substantially affect parental rights is structural error. There, the family court appointed counsel three months after it awarded foster custody to DHS, and eight months after DHS first petitioned for family supervision of a mother's then-only child. L.I., 149 Hawai‘i at 119-20, 123, 482 P.3d at 1080-81, 1084. The mother should have been appointed counsel once DHS petitioned for family supervision: "at that point, parental rights are substantially affected as foster custody can be ordered by the court at a subsequent hearing." Id. at 122, 482 P.3d at 1083.
The present case is unlike T.M. and L.I. The court timely appointed counsel at the start of the CPA proceedings, right after DHS petitioned for temporary foster custody of JH. And though the family court defaulted Parents and discharged their attorneys, the
[152 Hawai'i 379] court reappointed counsel when Parents reappeared.
This is not a case where parents proceeded without counsel. Rather, because of the child's best interests, it's a case that at times necessarily proceeded without parents. The right to counsel is not automatically violated when a beneficiary of that right voluntarily absents themself from family court proceedings.
There is no structural error for another reason. A fundamentally fair process may still happen in discharge of appointed counsel cases.
Structural errors affect the trial's entire framework, its structure. See State v. Reed, 135 Hawai‘i 381, 386, 351 P.3d 1147, 1152 (2015). Because a structural error makes the trial "fundamentally unfair," the trial is not subject to harmless error review. See State v. Loher, 140 Hawai‘i 205, 214, 398 P.3d 794, 803 (2017). We have identified two features of a structural error: (1) "certain rights protected by the Hawai‘i Constitution are so basic to a fair trial that their contravention can never be deemed harmless"; and (2) "an error may be properly considered structural when the impact of the error on conviction is impossible to reliably assess and when harmless error review would require the appellate court to engage in pure speculation." Id. at 222, 398 P.3d at 811 (cleaned up).
Discharge of counsel cases do not present the same problems that surface when courts do not appoint counsel in the first place. If the court does not appoint counsel at the start of CPA proceedings, then "the harm suffered by parents proceeding without counsel may not be readily apparent from the record, especially because without the aid of counsel, it is unlikely that a case is adequately presented." See T.M., 131 at 436, 319 P.3d at 355 (cleaned up).
A family court's discharge of counsel, though, does not necessarily make a trial fundamentally unfair or an unreliable way to decide whether parental rights should terminate. Cf. In re RGB, 123 Hawai‘i 1, 25, 229 P.3d 1066, 1090 (2010) (observing the failure to timely appoint counsel always calls "the justice of the [trial] court's decision ... into serious question"). Instead, the trial's fundamental fairness turns on the case's circumstances.
Third, there's no structural error in discharge of counsel cases because a bright-line rule – discharge of indigent parents’ counsel at any stage constitutes structural error requiring vacatur – is inflexible. It ignores when, how long, and the reason parents’ counsel were discharged. And it pays no attention to whether the proceedings were fundamentally fair.
There is still another problem with a structural error approach to cases involving discharged counsel. Automatic reversal and retrial cause friction with the key statutory time frame parents must meet to provide a safe family home. See HRS § 587A-33(a). Parents have two years from a child's entry into foster custody to become willing and able to provide a safe family home. This two-year deadline gives parents a reasonable time to provide a safe family home. And it advances the child's interests in a prompt and permanent resolution of their custody status. RGB, 123 Hawai‘i at 26, 229 P.3d at 1091.
Throughout a CPA case, family courts must protect a parent's fundamental right to parent their child. But if the outcome of any break in counsel is vacatur and remand, then the time it takes to permanently place a child drags on. A parent's choice not to appear in court or maintain contact with counsel should not undermine a child's interests in permanency. See RGB, 123 Hawai‘i at 26, 229 P.3d at 1091 (finding that "it is in the child's best interest and overall well being to limit the potential for years of litigation and instability").
Parents sometimes fail to show up in court. When a parent inexcusably fails to appear in court, family courts often invoke Hawai‘i Family Court Rules (HFCR) Rule 55(b). The parties neither question nor discuss
HFCR Rule 55(b) reads:
In a contested or uncontested action, where it appears from the record and by testimony (or by affidavit or declaration in an uncontested matrimonial action) that the adverse party has been duly served with the complaint or dispositive motion, and the adverse party has failed to appear or otherwise defend as provided by these rules, the court may grant an entry of default and proceed with a proof hearing, when a hearing is required, and enter a default judgment.
[152 Hawai'i 380] this apparent first circuit norm. We stress that rule 55(b) should be used sparingly. And because parents have a fundamental right to parent their children, family courts should freely find good cause to set aside a default when a parent resurfaces and re-engages in the case.
JH's Guardian Ad Litem represented that "[t]he common procedure when a parent fails to appear without good cause is for them to be defaulted, for their counsel to be discharged if parents do not make contact within a certain period of time, and for counsel to be re-appointed if parents do reappear in the case, although the court's ruling often depends on the circumstances of the parents’ non-appearance."
In some cases, a court cannot freely set aside a parent's default without undermining a child's best interests and the CPA. For instance, if a parental rights case nears its end, then a court may use its discretion - after it provides a parent a fair process - to refuse a parent's request to set aside a default.
Until then, however, it is a reasonable exercise of discretion for the family court to discharge counsel. After all, what's an attorney to do? If a parent chooses not to appear in court or decides not to communicate with counsel, then counsel is hard-pressed to understand the parent's present objectives, and is challenged to provide sound, ethical representation. See State v. Wilson, 144 Hawai‘i 454, 463, 445 P.3d 35, 44 (2019) (explaining that "counsel has a duty to consult with the defendant before making strategic decisions when it is feasible and appropriate to do so"); Hawai‘i Rules of Professional Conduct (HRPC) Rule 1.2 (providing "a lawyer shall abide by a client's decisions concerning the objectives of representation, and ... shall consult with the client as to the means by which the objectives are to be pursued").
An advisement or colloquy may help. We believe it is useful for family courts to advise parents at the beginning of Child Protective Act proceedings about the risks and consequences of their failure to appear and the importance of maintaining meaningful communication with counsel. See State v. Kaulia, 128 Hawai‘i 479, 493, 291 P.3d 377, 391 (2013) (noting "the best way to ensure a defendant's constitutional rights are protected is for the defendant to be informed of the nature of the right and the consequences of waiving that right").
III.
If there is no structural error after a family court discharges counsel in CPA proceedings, then how does an appellate court determine whether the case satisfied due process?
The court assesses the proceedings to see if they were fundamentally fair.
This inquiry examines whether a parent received a fundamentally fair process under the circumstances of the case. We hold that a family court's discharge of counsel during proceedings that substantially affect parental rights only violates a parent's right to counsel if that discharge deprives the parent of a fundamentally fair process.
Due process and fundamental fairness intertwine. To satisfy article I, section 5, a judicial proceeding has to be fundamentally fair. See RGB, 123 Hawai‘i at 25, 229 P.3d at 1090 (explaining that with ineffective assistance of counsel claims in CPA proceedings, courts should determine "whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination."); State v. Uchima, 147 Hawai‘i 64, 76 n.14, 464 P.3d 852, 864 n.14 (2020) (explaining that article I, section 5 requires "standards necessary to ensure that judicial proceedings are fundamentally fair") (cleaned up)); Lassiter v. Dep't of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (finding that due process "expresses the requirement of ‘fundamental fairness’ ").
Parents must receive "a fair procedure" before they lose their parental rights. In re Doe, 99 Hawai‘i at 533, 57 P.3d at 458. The due process floor entails "notice
[152 Hawai'i 381] and an opportunity to be heard at a meaningful time and in a meaningful manner." Id. A fair procedure, though, is more than just notice and an opportunity to be heard.
Due process is versatile. Context shapes the process that is due. See Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 389, 363 P.3d 224, 237 (2015) (holding the due process is "flexible and depend[s] on many factors"); Sandy Beach Def. Fund v. City Council of City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989) (holding that "due process is flexible and calls for such procedural protections as the particular situation demands" (cleaned up)). Due process's versatility means that the discharge of counsel in CPA proceedings "must be viewed in the broader context of ... the family court proceeding" as a whole. See RGB, 123 Hawai‘i at 27, 229 P.3d at 1092.
There is no violation of a parent's due process right to counsel when a family court discharges and later reappoints counsel, and the case, viewed in its entire context, establishes that the parent received a fundamentally fair trial and the family court accurately determined that parental rights should terminate. See id. at 25, 229 P.3d at 1090.
IV.
Here, Parents received a fair procedure. They were appointed counsel at the onset of the CPA proceedings and had a meaningful opportunity to participate in their case with the aid of counsel.
Parents benefitted from the assistance of court-appointed counsel. Once the proceedings were underway, counsel represented them for 22 of 27 months. The court discharged Parents’ attorneys and defaulted Parents only after they inexcusably failed to appear at a court hearing. But when they did appear in court, so did counsel.
Parents’ ability to present their case was not materially impacted by the five-month gap in legal representation. No hearings happened after the court discharged counsel. And when Parents reappeared on January 21, 2020 at the periodic review hearing, counsel appeared beside them. From then on, counsel represented Parents until the close of the trial on April 26, 2021, a trial that lasted three days and spanned three months.
On the final day of trial, before the family court terminated Mother and Father's parental rights, it confirmed compliance with the key Child Protective Act criterion: parents received the assistance of a service plan and "a reasonable period of time" to provide their child a safe family home. See HRS § 587A-33(a)(2).
The family court ruled that DHS proved by clear and convincing evidence that parental rights should terminate. See HRS § 587A-33(a)(1), (2). The record shows that substantial evidence supports the family court's HRS § 587A-33(a) termination of parental rights findings.
Due process was satisfied. Parents received a fair procedure before the family court terminated their parental rights. See In re Doe, 99 Hawai‘i at 533, 57 P.3d at 458.
V.
We reverse the ICA's judgment on appeal filed on March 2, 2022. The Family Court's April 28, 2021 Order Terminating Parental Rights is affirmed.
DISSENTING OPINION BY WILSON, J.
The relationship between children and parents in our society is of preeminent importance. To protect the family from separation by unjust government removal of children from their parents, a panoply of constitutional rights protects the sacrosanct family bond from being broken by the State without adequate justification. Parenting is a constitutionally guaranteed right. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) ("The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court."); In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002) ("We affirm, independent of the federal constitution, that parents have a substantive liberty interest in the
[152 Hawai'i 382] care, custody, and control of their children protected by the due process clause of article I, section 5 of the Hawai‘i Constitution."). Where the State seeks to take a child from parents, the interests at stake for the children, the parents and the State are of the highest order. See In re TM, 131 Hawai‘i 419, 434, 319 P.3d 338, 353 (2014) ("the State's decision to deprive a parent of his or her child is often ‘more grievous’ than the State's decision to incarcerate a criminal defendant.") (citations and quotations omitted). Our families in Hawai‘i are protected from unjust loss of their children by the constitutional right to counsel for indigent parents facing action by the State seeking to take custody of their children or to terminate their parental rights. See, e.g., In re L.I., 149 Hawai‘i 118, 119, 482 P.3d 1079, 1080 (2021) (holding that the failure to appoint counsel at the time the State filed its petition for family supervision was structural error). It is settled that any parent who cannot afford an attorney is constitutionally entitled to court appointed counsel in actions by the State to end their parental rights. TM, 131 Hawai‘i at 421, 319 P.3d at 340 ("courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child."). Prior to the Majority's decision in this case, violation of the right to counsel in parental termination cases was of such severity that it constituted structural error that could only be remedied by a new hearing with legal representation afforded the parents. The Majority now guts the right to counsel by rejecting the structural error standard and replacing it with a weak "fairness" standard that allows for the Majority's conclusion that deprivation of JH's parents’ constitutional right to counsel was fair.1
Mother and Father were appointed counsel at the October 12, 2018 initial hearing on the Department of Human Service's ("DHS") petition for temporary foster custody. The Family Court of the First Circuit ("family court") later sua sponte dismissed their attorneys when parents did not appear for a continued hearing on DHS's petition for foster custody on August 14, 2019. The family court further ordered that notice of all future hearings to the parents be waived. Presumably without notice of the family court action discharging their attorneys, parents may have been under the belief counsel represented them. For over five months the parents of JH were without counsel as the family court and the State proceeded to prepare for a January 21, 2020 hearing to terminate their right to be the parents of JH. On January 14, 2020, DHS filed its Motion to Terminate Parental Rights without notifying parents. Inexplicably, DHS served notice on the parents’ prior attorneys who had been discharged by the family court. It appears that parents did not learn that they were unrepresented, nor that they were facing a motion for termination of parental rights until January 21, 2020 when they appeared in court for a periodic review hearing. At that time, at least Mother learned for the first time that the family court had intended to decide their parental termination rights that day in their absence.
The Majority does not dispute that parents’ right to counsel was violated during the five-month period between the continued hearing on DHS's petition for foster custody and the review hearing when counsel was reappointed. Nor does the Majority dispute
The right to counsel attached "once DHS file[d] a petition to assert foster custody over a child." See L.I., 149 Hawai‘i at 122, 482 P.3d at 1083.
[152 Hawai'i 383] that parents were presumably unaware that they were without representation for five months. And there is no dispute that the family court ordered that it was not necessary to notify parents that a motion was filed to terminate their parental rights.
As correctly determined by the Intermediate Court of Appeals ("ICA"), the parents constitutional right to counsel was abrogated when the family court dismissed their counsel, ordered that they no longer were entitled to be notified of future proceedings and thereafter scheduled a hearing to determine their parental rights with the assumption that parents would be absent from the hearing. Prior to the Majority's ruling, it has been settled that a proceeding to determine parental rights conducted in violation of parents’ right to counsel is fundamentally unfair. The structure of the proceeding becomes unfair. Because Mother and Father's respective counsel were discharged after DHS petitioned for temporary foster custody but before their parental rights were terminated, the family court's failure to provide parents with adequate representation "cannot be deemed harmless." L.I., 149 Hawai‘i at 123, 482 P.3d at 1084 ("The family court's failure to appoint Mother counsel when DHS filed its petition for family supervision was structural error and cannot be deemed harmless."). Of what advantage to the family or the courts is the discharge of an indigent parent's counsel? The opportunity for participation of the parent with a lawyer – whose advice is deemed under the Hawai‘i State Constitution to be so essential as to require court-appointment – is lost. On the other hand, even where an indigent parent who fails to appear for a hearing is defaulted, if parent's counsel is not discharged by the court, the parent continues to have representation by court-appointed counsel who, as an attorney continuing in the case, will have the professional and economic incentive to contact the parent. Court-appointed counsel will also have the duty to respond if the parent requests further advice, including the set-aside of a default judgment. Had counsel for JH's parents not been terminated by the family court, the issue of deprivation of counsel would not have arisen in this case. Nor would the Father in In re JB, SCWC-21-0000283, 2023 WL 2553925 (Haw. Mar. 17, 2023) have been prejudiced if the family court had allowed counsel to continue. As with the parents of JH, the family court terminated counsel for JB's indigent father because he failed to appear at a continued hearing on DHS's petition for temporary foster custody.
The ICA rightly found that once there is a violation of the right to counsel for a parent facing termination of parental rights, the threat to the fundamental fairness of the judicial process is of such magnitude that a structural error has been committed requiring a new parental rights determination.
The Majority concedes that until JH's case, the structural error standard protected indigent parents by requiring a new termination hearing when their right to counsel was violated. But now the Majority provides a new analysis finding the proceedings to be fair notwithstanding that (1) the family court discharged parents’ counsel and waived notice to parents of future hearings; (2) the family court scheduled a hearing to consider
The Majority limits the holding of T.M. and L.I. to instances where the family court fails to appoint counsel for indigent parents at the outset when a petition for family supervision or foster custody is filed. While it is true that under the facts of T.M. and L.I., this court found structural error was committed due to the family court's delay in appointing counsel, the rationale for applying a structural error analysis applies equally where the family court discharges an indigent parent's counsel. The violation of right to counsel is not necessarily of greater consequence at the beginning of the case than later in the case. The Majority's finding that the failure to appoint counsel is of greater consequence than the discharge of counsel leads to false assumptions such as that made by the Majority that the five-month period parents were without counsel was of no consequence. Under this false analysis, a parent whose attorney was timely appointed at the inception of a case, but was thereafter improperly discharged by the court before a termination of rights hearing would be less deserving of the due process right to counsel than the parent who receives the protection of structural error because counsel is not appointed until shortly after the beginning of child custody proceedings.
[152 Hawai'i 384] termination of their parental rights in the parents’ absence; and (3) parents were unjustly deprived of five months of representation before the decision terminating their parental rights was entered.
Starkly contradicting the settled principle recognized by the ICA that violation of an indigent parents right to counsel constitutes structural error infecting the fairness of the termination of parental rights proceeding, the Majority condones the family court's termination of parents’ counsel and removal of their parental rights by applying for the first time a harmless error/fairness analysis. The Majority looks back at the proceedings that occurred after the violation of parents’ right to counsel and finds fairness. Thus, the profound protection of parental rights provided by a structural error remedy is discarded in favor of an analysis that allows the appellate court to parse the record and decide whether – notwithstanding the violation of parents right to counsel – a harmless injustice occurred.
As the ICA explained, citing L.I., 149 Hawai‘i at 122, 482 P.3d at 1083, a structural error analysis ensures that parents’ fundamental due process rights "are not subject to ‘the vagaries of a case-by-case approach.’ " Harmless error, on the other hand, invites the "vagaries of a case-by-case approach[.]" Id.
In rejecting the structural error protection for the parents of JH, the Majority notes that counsel represented parents for 22 of 27 months. Yet the Majority concedes that, if, at the beginning of the case, counsel was not appointed in a timely manner, structural error would apply and "the vagaries of a case-by-case approach" under the Majority's new fairness standard would be inapplicable. Compare the prejudice resulting from the deprivation of five months of representation to the lesser prejudice, for example, from the delay of one month of appointment of counsel after DHS files a petition for family supervision or foster custody. Why should the weaker "fairness" standard apply to the five-month deprivation of counsel and the much stronger structural error standard apply to the shorter, presumably less prejudicial, violation of right to counsel from a one-month delay in appointment of counsel?
Thus, it is unclear how the Majority squares its fairness analysis with its test for structural error. Wouldn't the importance of structural error protection be greater where the wrongful discharge of parents’ counsel occurred after the initial appointment of counsel and deprived parents of representation for five months?
Respectfully, heretofore it was a core legal consensus and an unquestioned precept of constitutional justice that a termination of parental rights proceeding conducted after deprivation of the right to counsel constitutes structural error because deprivation of counsel is a threat to the fundamental fairness of the very structure of the proceedings meant to ensure the safety of families and protect the sacrosanct relationship between parent and child. The Majority offers inadequate justification for its departure from settled precedent applying the structural error standard. There is no evidence suggesting that family courts will be overwhelmed if violations of parents’ right to counsel constitute structural error requiring a new hearing on the termination of parental rights; nor is there evidence that indigent parents are creating administrative problems by manipulating the courts to delay proceedings by not appearing at scheduled termination hearings. In this case, there was no apparent effort by the family court or DHS to inform the parents of the proceedings designed to terminate their right to be with their children.
Some discussion in the Majority opinion notes that it would "cause friction" with the two-year time period to prepare a family service plan in HRS § 587A-33(a) if parents prevailed on appeal and thereafter on remand received a new parental rights termination hearing. But indigent parents constitutional right to counsel cannot be dependent on the two-year time period for preparation of a family service plan. The court's violation of parents right to counsel is not rendered harmless because the parents’ lawful appeal to an appellate court of the state of Hawai‘i takes more than two years.
The new rule adopted by the Majority—that proceedings terminating parental rights can be just when done after parents are deprived of right to counsel—unnecessarily defies the bedrock constitutional principle that families must be protected by the application of structural error when the State seeks to take children from their parents. The Majority's analysis assumes (1) that legal representation of the parents for the five months at issue would not have made a difference and (2) that it can be said beyond a reasonable doubt that deprivation of the right to counsel for parents whose parental rights are at stake is of no consequence.
[152 Hawai'i 385] These assumptions are unfounded and dangerous, and they undermine the integrity of the judicial process by discarding the protections afforded by the recognition that removal of a parents’ right to counsel threatens the very structure that ensures the fairness of the judicial system.
Respectfully, on this record of willing parents whose fear of losing their child causes them to persevere and bring their plea for justice all the way to the Supreme Court of the State of Hawai‘i, it cannot be said beyond a reasonable doubt that deprivation of their right to be represented after the State sought temporary custody of their child was harmless. To even apply the harmless error analysis deprecates the seriousness of the rights of parents to be with their children. Families, children, parents and our society deserve the constitutional protection of the application of structural error whenever parents are deprived of the right counsel at the fateful proceedings to determine their parental rights. The ICA was correct. Application of the harmless error/fairness standard cheapens the right to counsel for families facing termination of parental rights.
I respectfully dissent. Article I, section 5 of the Hawai‘i Constitution protects our families from the State taking children from indigent parents whose right to counsel is violated when the court wrongly discharges their attorney after DHS files a petition to assert foster custody over a child. The profound societal implications resulting from the deprivation of the right to counsel to indigent parents facing the loss of a child necessitates the protection of the structural error standard when the court abrogates that fundamental right. The parents of JH should receive a new hearing on the motion to terminate their rights to be the parents of their child.