IN THE INTEREST OF THE CHILDREN v. << (2025)

This case concerns when lack of counsel constitutes structural error, and thereby invalidates fundamentally fair Child Protective Act proceedings that serve a child's best interest.

We hold that there is no structural error when the family court does not provide counsel to an indigent parent who absents themself from the case's initial proceedings and neglects the court's process for appointing counsel.

Because we find no structural error, and this years-long parental rights termination case was fundamentally fair, we affirm the family court's order that revoked foster custody, granted permanent custody of the children to DHS, and ordered the permanent plan of adoption by the children's adult half-sister.

I.

In May 2017, Appellee-Mother (Mother) gave birth to a daughter, Taylor (to protect the minor's privacy, we use a pseudonym). Both Taylor and Mother tested positive for opiates and methamphetamines. The hospital notified the Department of Human Services about a threat of abuse and neglect. See Hawai‘i Revised Statutes (HRS) § 350-1.1 (2015).

At the time, Father was incarcerated and Mother on felony probation. They never married.

In April 2019, Mother and Father had another daughter, Jordan (again, a pseudonym). Mother disclosed that she took suboxone (an opiate withdrawal medication) during her pregnancy. Medical personnel monitored Jordan for withdrawal symptoms. Like before, the hospital notified DHS of a threat of abuse and neglect.

On June 6, 2019, DHS filed a “Petition for Family Supervision” in the Family Court of the Second Circuit. HRS § 587A-12 (2018). DHS served Mother and Father with a summons to appear in family court on June 21, 2019. HRS § 587A-12(c)(2) (“The court shall conduct[ ] [a] return hearing[ ] ․ within fifteen days after the petition is filed”). The family court also appointed a Guardian Ad Litem (GAL) for the girls. HRS § 587A-16(a) (2018). Both the GAL and DHS social worker submitted reports throughout the case. Id.; HRS § 587A-18 (2018).

Neither parent showed up at the June 21, 2019 hearing. The family court granted DHS’ oral motion for temporary foster custody. See HRS § 587A-26 (2018). “ ‘Temporary foster custody’ means a legal status created under this chapter with or without a court order, whereby the department temporarily assumes the duties and rights of a foster custodian of a child.” HRS § 587A-4 (2018). The court set a return hearing for July 2, 2019. HRS § 587A-28 (2018) (“When a petition has been filed, the court shall conduct a return hearing within fifteen days of[ ] ․ [t]he date a decision is announced by the court during a temporary foster custody hearing.”).

Mother appeared at the return hearing. The family court took no substantive action. It continued temporary foster custody. Per the court minutes, the court scheduled a “Return Hearing w/ Counsel” in two weeks. Because the record on appeal lacks transcripts for the case's initial proceedings, it is unclear whether the court directed Mother to return to court after completing the second circuit's one-page application for court-appointed counsel, or instructed her to return to court with retained counsel.

Mother missed the return hearing on July 16, 2019. Based on the DHS social worker's testimony, the family court granted DHS foster custody. HRS § 587A-15 (2018). The court found that the children's “physical/psychological health/welfare has been harmed or is subject to threatened harm by the acts or omissions of mother and father, to-wit; threatened harm due to substance abuse that lead[s] to impaired parenting.” See HRS § 587A-7 (2018).

Mother disengaged from the case. Father too. Parental disengagement, the parties agree, is not an uncommon feature of chapter 587A proceedings. Still, parents frequently re-engage.

About four months later, on November 5, 2019, Mother appeared in court. Nothing substantive happened. Like before, the court minutes reflect that the court scheduled a “Return Hearing w/ Counsel.” Again, it is unclear whether the court advised Mother to fill out an application for court-appointed counsel. But we believe that the court was acquainted with the Family Court of the Second Circuit's standard indigency form and understood HRS § 587A-17(a) (2018) (“The court may appoint an attorney to represent a legal parent who is indigent based on court-established guidelines.”); HRS § 587A-25(d) (2018) (“If a party is without counsel or a guardian ad litem, the court shall inform the party of the right to be represented by counsel and the right to appeal.”); and HRS § 571-8.5(a)(8) (2018) (“The district family judges may: ․ Appoint ․ attorneys to represent parties in accordance with law”).

That same day, after court, Mother applied for counsel. One week later, on November 12, the court appointed her counsel.

Mother did not make the return hearing on November 26, 2019. But counsel appeared. The court continued all prior orders. Then, on December 3, 2019, Mother made it to court. Again, counsel appeared. With counsel's aid, Mother agreed to DHS’ service plan. See HRS § 587A-27 (2018). Per the plan, she entered drug treatment.

Thereafter, Mother engaged in the case and appeared at all court hearings side-by-side with an attorney. Mother had a lawyer to the case's end – nearly three years later.

As Mother's case progressed, she appeared on the surface to do well, complying with the service plans. After a year of DHS foster custody, the court entered a family supervision order. See HRS § 587A-4 (“Family supervision” is “the legal status in which a child's legal custodian is willing and able, with the assistance of a service plan, to provide the child with a safe family home.”). The children reunited with Mother.

For almost one year, the children and Mother lived together. First in a drug treatment program for woman with children. Then with the girls’ adult half-sister on O‘ahu. And eventually with Father in a 20-foot trailer next to a home in Wailuku that Mother's father owned.

Family supervision proved unworkable. Because of abuse and neglect concerns, and Mother's drug use, in June 2021, DHS asked the court to revoke family supervision and reinstate DHS foster custody. See HRS §§ 587A-7 and 587A-15(a)(2) (2018). DHS reported that the two girls were developmentally maladjusted and physically aggressive. Both the DHS social worker and GAL described the girls as “feral.” The DHS social worker informed the court that a good Samaritan had found four year-old Taylor running unattended on a street blocks from where they lived.

Mother also deceived DHS about her drug use and treatment efforts. DHS reported that Mother continued to use unlawful drugs, refused to drug test when asked, and despite saying she regularly attended drug treatment, no-showed for virtually every treatment session. DHS concluded “the children are not safe in [her] care.”

After a status hearing on June 29, 2021, attended by Mother and her counsel, the family court revoked family supervision. HRS § 587A-15(a)(2). DHS again took custody of the children. DHS then placed the girls on O‘ahu with their paternal half-sister. HRS § 587A-15(b)(2). Since June 30, 2021, the children have lived there, under their sister's care.

Nearly three months after the children re-entered foster custody, the GAL reported that they were happy in their sister's home. They bonded well with her. Taylor, in particular, displayed noticeable improvement in her social interactions and behavior. The girls enjoyed pre-school and adjusted nicely to the structure their half-sister had established.

In October 2021, Mother agreed to her fifth service plan. The plan, like the others, required Mother to complete substance abuse treatment.

By March 2022, both the GAL and DHS social worker reported that the girls were “doing exceedingly well.” The DHS social worker had previously reported that the girls kicked and hit her, but now she said, they were well-mannered. Their speech improved. They lived in a clean home. The girls greatly benefitted from a stable home life with an “extremely devoted” caretaker. They were “thriving.”

In May 2022, DHS moved to terminate parental rights (TPR). HRS §§ 587A-4, 587A-32 (2018), and 587A-33 (2018). DHS had filed the petition for family supervision almost three years earlier, and the girls’ time in foster custody totaled 21 months. The DHS social worker submitted a permanent plan recommending adoption by the half-sister. HRS § 587A-32(a)(1) (“The permanent plan shall[ ] ․ [s]tate whether the permanency goal for the child will be achieved through adoption, legal guardianship, or permanent custody.”).

The court set a TPR trial date. Shortly before trial, Mother's counsel moved to withdraw. Counsel declared their relationship “irreparable.” The court granted the motion and appointed Mother new counsel. On September 23, 2022, the family court held a trial. Mother and Father both appeared with their own counsel.

DHS had the burden of proof. HRS § 587A-33. It presented evidence that the children's living conditions with Mother were unsafe. DHS recounted, among other events, the incident where residents found Taylor running down the street blocks from the home. A psychological evaluation revealed that Taylor felt lingering fear due to Mother leaving her alone in the trailer. Testimony also centered on the girls’ behavioral issues under Mother's care – they were described as “out of control” - and how it reflected neglectful parenting. DHS introduced evidence about Mother's drug use, deception, failed treatment efforts, and her inability to follow the service plans. And DHS presented substantial evidence regarding the girls’ positive transformation while in their sister's care.

The family court terminated Mother's and Father's parental rights. It found that Mother and Father were not willing and able to provide the children with a safe family home, even with the assistance of a service plan. HRS § 587A-33(a)(1)-(2). The court ruled that DHS’ permanent plan with the goal of adoption by the girls’ half-sister served the best interest of the children. HRS § 587A-33(a)(3).

One month after the family court's order terminating parental rights, Mother's trial counsel moved to withdraw, saying Mother was unsatisfied with his representation. That same day, Mother's new lawyer filed a notice of appeal in the ICA. Later, the court granted her trial lawyer's motion to withdraw. (The procedural and jurisdictional issues surrounding the switch in lawyers have no consequence here.)

Mother appealed. Father did not. Mother raised two issues. First, she argued (for the first time) that the family court erred by appointing the GAL because the GAL had previously represented Mother in a different matter. Second, she argued that the family court committed structural error by failing to appoint her new counsel after granting her trial counsel's post-trial motion to withdraw. Mother said she could not preserve the guardian ad litem issue because “she was stuck with an attorney” who disagreed with her, “and she was not appointed another attorney after he was discharged.”

DHS responded that Mother's first point of error lacked merit because she did not raise it in the family court. DHS also maintained that no structural error occurred. The family court did not appoint Mother new counsel because she had already hired someone. Mother was never without counsel after the trial.

The ICA ordered supplemental briefing. It wanted the parties to examine “whether appointment of counsel for Mother was timely.”

In a memorandum opinion, the ICA held that the failure to immediately appoint counsel constituted structural error: “the Family Court's failure to appoint Mother counsel for 144 days, between June 21, 2019 (when temporary foster custody was requested and granted) to November 12, 2019 (when counsel was appointed) was structural error which requires vacatur of orders affecting custody of the Children from June 21, 2019.” The ICA did not address Mother's argument about the GAL's putative conflict.

The ICA's opinion invalidated all custody orders affecting the best interest of the children. The CPA proceedings had to start over.

The GAL applied for cert. The Department of Human Services joined the application. We accepted cert.

II.

In Hawai‘i, “parents have a substantive liberty interest in the care, custody, and control of their children.” In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002). To support that fundamental right, the Hawai‘i Constitution's due process clause, article I, section 5, confers parents a right to counsel in Child Protective Act proceedings. In re T.M., 131 Hawai‘i 419, 421, 319 P.3d 338, 340 (2014). “[C]ourts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.” Id.

What if the court does not? In re L.I. introduced structural error – an error that upsets the integrity of the judicial process - to CPA proceedings. 149 Hawai‘i 118, 122, 482 P.3d 1079, 1083 (2021). Because of the constitutionally protected liberty interest at stake, once parental rights are substantially affected, the family court should provide counsel to an indigent parent. Id. Otherwise, structural error results. And thus, despite a fundamentally fair, error-free process that serves a child's best interest, the case starts over. (L.I was published after DHS filed a petition for family supervision in the present case.)

T.M. and L.I. involved cases where a structural error solution was evident.

In T.M., all the parties except T.M.’s 15 year-old mother had counsel throughout the case. 131 Hawai‘i at 422, 319 P.3d at 341. The young mother actively engaged with the case from the very start. Yet 19 months passed between her child's placement in foster custody and the court's appointment of counsel to protect her interests. Id. at 433, 319 P.3d at 352. She later lost her right to parent. Id. at 429, 319 P.3d at 348.

This court disapproved. We didn't adopt structural error then. But we ruled that no matter what, the mother did not receive a constitutionally sound process. She lacked a lawyer “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.” Id. at 432-33, 319 P.3d at 351-52. Had mother received counsel sooner, this court said, there's a chance she would've followed the family service plan's terms and provided T.M. with a safe family home at an earlier date. Id. at 433, 319 P.3d at 352.

L.I. also had clear-cut structural flaws. There, the family court appointed the mother counsel three months after the court awarded DHS foster care, and 10 months after DHS’ initial petition for family supervision. 149 Hawai‘i at 119-20, 482 P.3d at 1080-81. During that time, the mother had engaged with the case. She participated in court hearings, consented to family supervision, and agreed to two service plans. Id. Yet she had no lawyer to help navigate family court and chapter 587A's demands.

L.I. directed family courts to appoint counsel for indigent parents when DHS files a petition for family supervision because, at that point, parental rights are substantially affected. Id. The failure to do so, this court ruled, amounts to structural error, requiring automatic vacatur of best interest findings without having to show harmful error. Id. at 123, 482 P.3d at 1084.

The T.M. and L.I. mothers approached their chapter 587A cases in the same way. They were involved from the first hearing. The mothers actively engaged in the case before receiving counsel. T.M.’s mother participated in an ‘ohana conference, and she agreed to two HRS § 587A-27 family service plans. T.M., 131 Hawai‘i at 423-24, 426, 319 P.3d at 342-43, 345. As for L.I.’s mother, she consented to family supervision and also agreed to two service plans over a ten month period. L.I., 149 Hawai‘i at 119-20, 482 P.3d at 1080-81. Both mothers attended every court hearing. Despite their engagement, the family court did not offer them court-appointed counsel. As the government worked to strip the mothers’ parental rights, they fended for themselves. We remanded both cases for new proceedings.

Last year, In re JH tacked from a “no questions asked” structural error approach in CPA right to counsel cases. 152 Hawai‘i 373, 526 P.3d 350 (2023). “[W]hen, how long, and the reason” a parent goes without counsel matter when it comes to assessing whether structural error nullifies best interest determinations. Id. at 379, 526 P.3d at 356.

In JH, the parents appeared at the first hearing and were appointed counsel. Id. at 377, 526 P.3d at 354. But the parents didn't show for the next hearing. Id. So the court discharged counsel. Id. Five months later, the parents reappeared. Then counsel represented them to the end, including a TPR trial. Id. JH held that counsel's absence during CPA proceedings does not always vacate best interest findings. Id. at 376, 526 P.3d at 353. There are limits to the right to counsel in parental termination cases. JH clarified that an indigent parent's constitutional right to counsel “is not automatically violated when a beneficiary of that right voluntarily absents themself from family court proceedings.” Id. at 379, 526 P.3d at 356.

JH pointed out that neither T.M. nor L.I. required reversal for structural error when an indigent parent is not from start to finish represented by court-appointed counsel in CPA proceedings. Id. at 378, 526 P.3d at 355.

Automatic reversal of best interest findings due to a parent's voluntary absence undercuts the paramount principle controlling chapter 587A proceedings – a fair resolution that serves the best interest of the child. For sure, the family court must protect a parent's constitutional right to parent their child. And the family court must honor a parent's constitutional right to counsel. But if an appellate court robotically vacates best interest findings, “then the time it takes to permanently place a child drags on.” Id. at 379, 526 P.3d at 356. JH talked about structural error's downside. The child may suffer. And it's the child's best interest that steers a chapter 587A case. We repeated that it is “in the child's best interest and overall well being to limit the potential for years of litigation and instability.” Id. (citing In re RGB, 123 Hawai‘i 1, 26, 229 P.3d 1066, 1091 (2010)).

JH held that a gap in legal representation due to a parent's voluntary absence did not – considering everything - warrant unravelling the proceedings and vacating an order terminating parental rights. See 152 Hawai‘i at 379, 526 P.3d at 356. We declined to apply structural error to cases involving discharged counsel because structural error is inflexible and ignores the practicalities of the situation. Id.

Thus, JH established that there is no structural error after a family court discharges counsel, and then later reappoints counsel in CPA proceedings. Id. at 380, 526 P.3d at 357. So long as the parent receives a fundamentally fair procedure, a best interest determination that results in a termination of parental rights will go undisturbed. Id.

Due process was satisfied in JH. Id. at 381, 526 P.3d at 358. No hearings happened between the five-month gap between when the parents voluntary absented themselves and then reengaged in the proceedings. Id. When the parents reappeared and re-engaged, so did counsel. Id. After that, counsel represented the parents until the end of the TPR trial. In all, the parents were represented for 22 of 27 months. Id. Since there was no structural error, we examined the trial. Substantial evidence supported the family court's HRS § 587A-33(a) termination of parental rights findings. Id.

In the present case, the family court did not appoint counsel for Mother at the initial proceedings. But it was Mother's failure to show up in court and follow the court's process that foiled legal representation. Once Mother appeared, completed an application for court-appointed counsel, and engaged, she received legal representation. Thereafter, counsel represented Mother for 34 uninterrupted months. Further, the record shows that after Mother received counsel, she had opportunities to reunite with her children before the family court terminated her parental rights.

The delay in receiving counsel did not harm Mother's case. Had the court provided the absent Mother a lawyer during the initial hearing, what would that attorney have done? See JH, 152 Hawai‘i at 380, 526 P.3d at 357 (“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.”). The dissent says that counsel may “immediately contact and appropriately advise the parent.” If contact and the attorney-client relationship are established, then counsel would likely communicate the value of participation. But at this stage, we do not believe that lack of counsel upsets a “trial's entire framework, its structure.” JH, 152 Hawai‘i at 379, 526 P.3d at 356.

An unbending structural error approach unfairly benefits a voluntarily absent parent at the expense of their child. “A parent's choice not to appear in court or maintain contact with counsel should not undermine a child's interests in permanency.” Id. Because the best interest of the child are foremost, a family court cannot simply freeze the case to await the emergence of a disinterested parent and that parent's compliance with the court's process for appointing counsel. See HRS § 587A-2 (2018).

The dissent's position may create situations where the best interests of the child are waylaid by structural error's rigidity. Consider a parent who did not appear in court until the last day of a TPR trial. If the court did not appoint counsel for that parent at the case's initiation, then structural error applies, and there is no harmlessness review. Therefore, each best interest finding gets vacated, and the court must re-start the proceedings, thereby upending the child's interest in permanency.

We hold that a parent's constitutional right to counsel is not invoked for structural error purposes until they appear and engage in the case, which includes complying with the court's process for determining indigency.

A. Mother Received a Fundamentally Fair Proceeding

When the government uses its power to untie the parent-child relationship, article I, section 5 of our state constitution demands a fundamentally fair process.

But here, the ICA gave “no attention to whether the proceedings [after Mother received counsel] were fundamentally fair.” JH, 152 Hawai‘i at 379, 526 P.3d at 356. The ICA applied structural error, thereby invalidating the family court's findings and conclusions advancing the best interest of the children.

Mother's decision to disengage did not trigger structural error. She absented herself for almost the first five months of the case. Once on track, however, Mother had legal representation at every hearing, including the TPR trial. Mother had a “meaningful opportunity to participate in [her] case with the aid of counsel.” Id. at 381, 526 P.3d at 358. After Mother received counsel, DHS and the family court gave her time to get on her feet. She attended drug treatment and parenting classes. The family court granted her family supervision. She had the opportunity to reunite with the children, something she didn't have when she neglected the first several months of the case.

The service plans, the court later found, gave Mother the best chance at “remedying the problems which put the Children at substantial risk of being harmed in the family home.” Within two weeks of being appointed counsel, Mother committed to her first service plan. Throughout the case, Mother agreed with and committed to five service plans, all with the aid of counsel.

After six months of participating in a drug treatment program, Mother showed she was willing and able to provide the children with a safe family home. See HRS § 587A-4. The family court credited her efforts by granting family supervision. Then with counsel's help, Mother seemingly complied with the terms of the various plans and provided the children with a safe family home. Compare T.M., 131 Hawai‘i at 433, 319 P.3d at 352 (“It may be that had counsel been appointed sooner, Petitioner may have been able to comply with the terms of the family plan and provided T.M. with a safe family home at an earlier date.”). But even with counsel's assistance and the service plans, Mother struggled. The family court revoked family supervision after nearly a year.

The court found that “Mother and the Father were given every reasonable opportunity to complete their services and effectuate positive changes to enable them to provide a safe family home with the assistance of a service plan in order to be reunified with the Children.” Mother tried. But unfortunately, she could not comply.

Some parents in Chapter 587A proceedings suffer from substance use disorders. Substance use disorders are “patterns of substance use that cause damage to physical or mental health or lead to clinically significant functional impairment or distress.” Nora D. Volkow & Carlos Blanco, Substance Use Disorders: A Comprehensive Update of Classification, Epidemiology, Neurobiology, Clinical Aspects, Treatment and Prevention, 22 World Psychiatry 203, 204 (2023) (footnote omitted)

https://onlinelibrary.wiley.com/doi/epdf/10.1002/wps.21073 [https://perma.cc/7JN6-Z3ZT]. In Hawai‘i, it is estimated that each year “500-650 children (about half of confirmed cases of child abuse or neglect) are at high risk of entering foster care because of their parent's substance use disorder.” Yoko Toyama Calistro & Karen Worthington, Strategies to Help CWS-Involved Parents Complete Substance Use Treatment and Protect their Children in Hawai‘i, 81 Haw. J. Health & Soc. Welfare, 37, 37 (2022)

https://pmc.ncbi.nlm.nih.gov/articles/PMC9783818/pdf/hjhsw8112_S 3_0037.pdf [https://perma.cc/76E8-D3FK]. From 2016 to 2020, parental alcohol and drug use contributed to about half of the child abuse and neglect cases. Id.

Mothers and fathers struggling with substance use may still satisfactorily parent their children. They may, in fact, be really good parents. “Parental substance use or SUD does not by itself constitute [child abuse and neglect].” Id. Rather, “[child abuse and neglect] occurs when ․ children's needs are not met because of the parent's use of substances.” Id.

We are mindful that HRS § 587A-7(a)(7) includes “history of substance abuse by the child's family” as a factor to consider “when determining whether a child's family is willing and able to provide the child with a safe family home.” But we stress that a parent's substance use, unaccompanied by evidence relating to HRS § 587A-7(a)(1) or other HRS § 587A-7 safe family home factors, does not support the loss of parental rights.

Mother does not argue on appeal that her case was fundamentally unfair. Or that there was not substantial evidence to support terminating her parental rights. The family court cited the witnesses’ testimony and the exhibits (reports from GAL and the DHS social worker) for support. The court found that Mother was willing, but ultimately unable to provide the children with a safe family home now or in the future, even with a service plan. See HRS § 587A-33(a)(1), (2). The court concluded that the children were thriving in their sister's care. And there was “clear and convincing evidence that it [was] in their best interest to remain where they are and be adopted and for the parental rights to be terminated.” See HRS § 587A-33(a)(1), (2). Mother does not challenge the family court's best interest findings.

B. Appointing Counsel in CPA Proceedings

The family court's decision to forego an early indigency determination troubles us. At the start, Mother appeared in court for two hearings. She didn't make back-to-back appearances, but when she showed, the court had an easy opportunity to make an indigency finding and appoint counsel. During oral argument, the parties disagreed on most things. They agreed though that CPA cases overwhelmingly involve indigent parents.

To fortify the right to counsel and (ideally) decrease representation-related appeals that may undo best interest findings, we direct family courts to make an indigency determination at a parent's first appearance in a chapter 587A proceeding that substantially affects parental rights. HRS § 602-4 (2016).

Courts may make this indigency finding after an on-the-record colloquy covering financial status. Or courts may on-the-spot have a parent complete a standard application for counsel form. (Like the simple form Mother eventually filled out, or the “application for court-appointed counsel” form used by the third circuit in T.M., 131 Hawai‘i at 422, 319 P.3d at 341.) Also, DHS typically has information related to a parent's financial plight, the parties pointed out, so DHS may be able to aid the court's indigency determination. If there's uncertainty regarding indigency or resistance from a parent, the right to counsel demands that the family court appoint counsel.

After the court makes an indigency determination at the first hearing attended by a parent, the family court should expeditiously undertake efforts to appoint counsel. (That is, if the court hasn't already secured counsel before that hearing.) We recognize that the availability of counsel and the immediate demands of chapter 587A may pose challenges. But determining indigency when the parent first appears will activate the right to counsel, curb structural error appeals, and advance the child's interest in permanency.

C. Mother Waived Any Conflict with the GAL

We turn to the two points of error Mother raised in her opening brief to the ICA. The case has spanned more than five years. Judicial efficiency and a permanent resolution that serves the best interest of the children favor resolving the merits here instead of remanding the case to the ICA.

First, Mother argued that the family court erred by appointing the GAL because the GAL had a conflict – she previously represented Mother in a different matter.

Mother did not raise her concern in family court. She leveled her conflict accusation for the first time on appeal. She concedes there is nothing in the record regarding a possible conflict. In the GAL's answering brief to the ICA, the GAL declared that she discussed the issue with Mother and her counsel at the time. Mother waived any potential conflict, the GAL represented. Mother's briefing does not dispute this. We conclude that Mother waived the issue and failed to preserve it for appeal. See Hawai‘i Rules of Appellate Procedure Rule 28(b)(4)(iii).

Mother's second argument - the family court erred by failing to appoint her new counsel after granting her trial counsel's post-trial motion to withdraw – also lacks merit. Mother says that “[h]ypothetically,” she could have litigated her first point of error (the GAL's putative conflict) in a motion for reconsideration or new trial. Thus, the family court's failure to appoint her substitute counsel was structural error.

Mother misconstrues structural error. She was never without counsel after the trial. On the same day that Mother's trial counsel moved to withdraw, Mother's new counsel filed a notice of appeal in the ICA. Mother's trial counsel continued as her court-appointed counsel pending the hearing on the motion to withdraw. Once the court discharged the trial counsel, it did not need to appoint Mother new counsel because she had already hired someone. There is no structural error.

III.

We vacate the ICA's September 26, 2023 judgment on appeal that vacated orders affecting custody of the children from June 21, 2019. We affirm the Family Court of the Second Circuit's September 26, 2022 order revoking foster custody, granting permanent custody of the children to DHS, and ordering the permanent plan of adoption by the children's adult half-sister.

I respectfully dissent and would affirm the Intermediate Court of Appeals’ (ICA) decision vacating the family court's September 26, 2022 orders revoking foster custody, granting the Department of Human Services (DHS) permanent custody of the children, and ordering the adoption of the children. The family court failed to appoint counsel for Mother until November 12, 2019, a lapse of over five months after the State filed its initial petition for family supervision on June 6, 2019, and over four months after the family court granted the State temporary foster custody on June 21, 2019 and Mother made her first appearance before the family court on July 2, 2019.

I respectfully disagree with the Majority based on this court's prior pronouncements that an indigent parent has a constitutional and “guaranteed” right to court-appointed counsel “as soon as” the State “files” a petition seeking child custody because it is “[a]t that point” that a parent's rights are “substantially affected” and counsel is required.¹ In re T.M., 131 Hawai‘i 419, 435-36, 319 P.3d 338, 354-55 (2014); see also In re L.I., 149 Hawai‘i 118, 119, 122, 482 P.3d 1079, 1080, 1083 (2021); In re JH, 152 Hawai‘i 373, 378, 526 P.3d 350, 355 (2023). Because the ICA adhered to and applied this court's established precedent in rendering its decision, I would affirm the ICA's judgment on appeal vacating the family court's orders entered on September 26, 2022 and the court's orders affecting custody of the children issued from June 21, 2019.

Contrary to the Majority's expressed concerns, appointing counsel “as soon as” the State initiates a parental rights proceeding, as this court mandated in its past decisions, does not conflict, contradict, or undermine the best interests of a child. By the time DHS files a petition for family supervision or temporary foster custody, it should have conducted an investigation into the family's situation. Thus, DHS should possess sufficient information to assist the court in determining a parent's need for court-appointed counsel at the initial hearing.

Protecting a parent's constitutional right to court-appointed counsel and serving a child's best interests is not an “either/or” proposition. Appointing counsel as soon as DHS files a family supervision petition serves the child's best interests by ensuring the State does not inappropriately remove the child from the parent, protects a parent's constitutional right to court-appointed counsel, allows the court-appointed attorney to immediately contact and appropriately advise the parent, and avoids future claims of error and unfairness.² If a parent thereafter voluntarily decides not to participate in the proceedings, then this court's holding in JH would apply, and the case would be reviewed applying a case-by-case analysis based on harmless error and fundamental fairness. See JH, 152 Hawai‘i at 376, 526 P.3d at 353.

A decade ago, this court expressly held that “trial courts must appoint counsel for indigent parents upon the granting of a petition to DHS for temporary foster custody of their children.” T.M., 131 Hawai‘i at 436, 319 P.3d at 355 (emphases added). “[A]s soon as DHS files a petition asserting custody over a child, parents’ rights are ‘substantially affected.’ At that point, an attorney is essential to protect an indigent parent's liberty interest in the care, custody and control of his or her children.” Id. at 435, 319 P.3d at 354 (emphases added).

That did not happen in this case. Here, the State through DHS filed a petition for family supervision on June 6, 2019. At the first hearing held on June 21, 2019, Mother was not present, nor did she have court-appointed counsel. The record on appeal does not include transcripts of the initial hearing; thus, it is unknown why Mother was not in attendance. At the hearing, without Mother or counsel present, the court granted DHS temporary foster custody of Mother's children pursuant to DHS's oral motion for custody.

Parents who find themselves in adverse and dire child custody situations are often dealing with personal hardships, including mental health issues, addiction, physical disability, job loss, housing insecurity, transportation challenges, and financial distress which hinders their ability to attend scheduled court hearings.³ They may be flat-out scared and intimidated by the court proceedings and may not understand the consequences of a petition for family supervision or foster custody. See T.M., 131 Hawai‘i at 435, 319 P.3d at 354 (“[A] parent in termination proceedings may struggle with legal issues that are ‘neither simple nor easily defined,’ and with a standard that is ‘imprecise and open to the subjective values of the judge.’ ”) (citing Lassiter v. Dep't of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 45 (1981) (Blackmun, J., dissenting)). A parent's life-struggles are often the very reason they are at risk of losing custody in the first place, and that is why it is critical that the court appoints counsel “as soon as” DHS files a petition for family supervision or foster custody as required by this court's prior decisions.

Counsel is crucial in child custody proceedings. With counsel, a parent will be better informed, notified of any changes in proceedings, and counsel can advise and prepare parents for what is at stake once an initial petition is filed. Without counsel, parents are likely unaware that their parental rights are implicated from the moment DHS moves for family supervision or foster custody. Appointing counsel at the outset eliminates the risk of structural error.

In the instant case, Mother was present at the next court hearing held on July 2, 2019, eleven days after the first hearing. DHS was represented by counsel while Mother was not. The court ordered that her children were to remain in DHS's temporary foster custody, thus continuing the impairment of Mother's parental rights. The court did not appoint Mother counsel. The transcript of the second hearing, like the first, was not included in the record. Therefore, it is unknown what, if anything, the court explained to Mother about the proceedings, including the potential consequences of not attending a hearing, the risk of permanently losing her children, and significantly, the option of applying for and having counsel appointed for her. See In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002) (“Procedural due process requires that an individual whose rights are at stake understand the nature of the proceedings he or she faces.”). Whether the family court adequately explained to Mother how to apply for counsel or simply directed her to retain counsel for the proceedings, without informing her that she had a constitutional right to court-appointed counsel, cannot be determined from the record and therefore requires second-guessing.⁴

At the third hearing held on July 16, 2019, Mother was not in attendance and the record is silent as to why she was not present. The court still did not appoint Mother counsel. At this hearing, the court revoked temporary foster custody and awarded DHS foster custody. Mother's constitutional rights continued to be substantially affected.

A fourth hearing was held on November 5, 2019. Mother attended, but again without representation, while the State had counsel. Again, the record does not reflect what, if anything, the court explained to Mother about obtaining counsel. The court's minutes reflect that Mother, pro se, made an oral motion to set aside the default entered against her in the prior proceedings. The court granted Mother's motion without objection and continued foster custody, thus Mother's parental rights remained substantially impaired.

Mother was finally appointed counsel on November 12, 2019, over five months after DHS initially filed its petition for family supervision, and over four months after the court awarded DHS foster custody.⁵

At the hearing held on November 26, 2019, Mother's counsel attended, Mother's presence was waived, and the court continued foster custody and all prior orders.

Mother's counsel attended the court hearing held on December 3, 2019. The court noted in the minutes that “mother has no transportation and is looking for a ride to court,” and she arrived at 8:31 a.m. The court continued foster custody.

Mother appeared at all subsequent court hearings with her attorney.

For over two decades this court has recognized “that parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of article I, section 5 of the Hawai‘i Constitution.” Doe, 99 Hawai‘i at 533, 57 P.3d at 458. In T.M., this court held that parents have a constitutional right to counsel in parental termination proceedings, and we honored that right by directing that family courts “must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.” 131 Hawai‘i at 421, 319 P.3d at 340 (emphases added). We also held that the trigger and timing in which courts must appoint counsel for indigent parents is “as soon as DHS files a petition asserting custody over a child[.]” Id. at 435, 319 P.3d at 354. That is to say, the appointment of counsel is required at the inception of the case because, at that point, a parent's constitutionally protected parental rights are “substantially affected” and “an attorney is essential to protect an indigent parent's liberty interest in the care, custody and control of his or her children.” Id. This court has never made a parent's right to court-appointed counsel dependent on a parent's engagement or appearance at the initial hearing. On the contrary, this court explicitly stated that “indigent parents are guaranteed the right to court-appointed counsel” because parental rights are implicated at the time the petition is filed. Id. at 435-36, 319 P.3d at 354-55 (emphasis added).

This court has analogized the right to counsel in child custody cases to the right to counsel in criminal cases. Id. at 434, 319 P.3d at 353. In T.M., we cited to Justice Stevens's dissenting opinion in Lassiter, and stated that “ ‘the reasons supporting the conclusion that the Due Process Clause ․ entitles the defendant in a criminal case to representation by counsel apply with equal force’ in cases where the state seeks to terminate parental rights.” Id. (quoting Lassiter, 452 U.S. at 59-60 (Stevens, J., dissenting)).

In 2021, we reiterated T.M.’s explicit mandate in L.I. and affirmed our bright-line rule that the “family courts must appoint counsel for indigent parents when DHS files a petition for family supervision because, at that point, parental rights are substantially affected as foster custody can be ordered by the court at a subsequent hearing.” L.I., 149 Hawai‘i at 122, 482 P.3d at 1083 (emphases added).

L.I. held that a family court's failure to appoint counsel for a parent “when DHS filed its petition” constituted “structural error” and, therefore, “cannot be deemed harmless.” Id. at 123, 482 P.3d at 1084. As stated, the timing to appoint counsel is dictated by the filing of a petition for family supervision or foster custody because it is at that point that a parent's constitutional rights are “substantially affected.” Although L.I.’s decision was issued after the instant case was initiated, its insight into T.M.’s holding is instructive.

In L.I., the mother was appointed counsel ninety-seven days after her child was placed in foster custody. Id. at 120, 482 P.3d at 1081. This court ruled that “the family court's three-month delay in appointing counsel for Mother, after DHS was awarded foster care, is a clear violation of In re T.M.” Id. at 123, 482 P.3d at 1084. In L.I., this court vacated the ICA's judgment and rejected the ICA's conclusion that the family court's failure to timely appoint counsel was harmless. Id. at 122-23, 482 P.3d at 1083-84; see In Int. of L.I. and H.D.K., No. CAAP-18-0000773, 2020 WL 1679419 (Haw. App. Apr. 6, 2020) (SDO) (vacated). To demonstrate that the mother did not suffer prejudice or harm, the ICA in L.I. cited to the mother's early absence from the courtroom, her failure to provide DHS with her current contact information, and her inconsistent responses that delayed the completion of paperwork necessary to appoint counsel. L.I., 149 Hawai‘i at 120-21, 482 P.3d at 1081-82. This court expressly rejected the ICA's reasoning that the three-month delay in appointing counsel was harmless error. Id. at 122-23, 482 P.3d at 1083-84. L.I. held that “[t]he failure to timely appoint counsel is structural error which, under State v. Loher, requires vacatur without the necessity of proving harmful error.” Id. at 123; 482 P.3d at 1084 (citing State v. Loher, 140 Hawai‘i 205, 222, 398 P.3d 794, 811 (2017)).

The doctrine of structural error recognizes that the inherent nature of certain constitutional rights is so significant in affording a person a fair trial that “certain errors are not subject to harmlessness review.” Loher, 140 Hawai‘i at 222, 398 P.3d at 811 (“[C]ertain rights protected by the Hawai‘i Constitution are so basic to a fair trial that their contravention can never be deemed harmless.”) (internal quotations and citations omitted). Such errors are considered structural when the impact of the error is difficult to assess and invites speculation. Id. The relationship between a parent and child is sacrosanct. The termination of parental rights is one of the most devastating tribulations a parent and child can suffer. It is an indescribable anguish, grief, and sense of loss that changes a parent and child forever. “[T]he 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.” T.M., 131 Hawai‘i at 434, 319 P.3d at 353 (citing Lassiter, 452 U.S. at 59 (Stevens, J., dissenting)).

In the case at hand, the appointment of counsel did not occur until approximately five months after the State filed its petition, over four months after the family court awarded the State temporary foster custody, and more than four months after Mother first appeared before the family court. The record is inadequate to determine what exactly happened at those initial hearings except that counsel was not appointed for Mother when the petition for family supervision was filed or when the court awarded temporary foster custody to the State. Mother required an attorney from the inception of the case. T.M. and L.I. required the court to appoint counsel “as soon as” DHS filed its petition for family supervision and the court awarded foster custody.

The facts in the present case are analogous to T.M. and L.I. and distinguishable from JH. In JH, the parents were appointed counsel at the start of the proceedings and their constitutional rights were thus safeguarded from the initiation of the case. 152 Hawai‘i at 376-77, 526 P.3d at 353-54. The parents’ subsequent absence from the proceedings resulted in the discharge of counsel, who was later reappointed when the parents participated again. Id. at 378-79, 526 P.3d at 355-56.

JH reaffirmed the principle that “[a]n indigent parent's right to counsel kicks in when parental rights are substantially affected,” which pursuant to T.M. occurs “as soon as” DHS files a petition. Id. at 378, 526 P.3d at 355; T.M., 131 Hawai‘i at 435, 319 P.3d at 354. However, JH distinguished the “appointment, discharge, and reappointment of counsel” as different from the failure to appoint counsel at the outset of a case being filed. 152 Hawai‘i at 376, 526 P.3d at 353.

We reasoned,

[d]ischarge 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.”

Id. at 379, 526 P.3d at 356 (quoting T.M., 131 Hawai‘i at 436, 319 P.3d at 355).

A parent who has the benefit of court-appointed counsel at the start of a case will receive the appropriate legal counsel and be able to make informed decisions before proceeding. In T.M. and L.I. counsel was not appointed at the outset until after custody was awarded. Structural error applied. In JH, counsel was appointed at the outset of the case and before the awarding of custody. Structural error did not apply. Thus, we applied a harmless error analysis and held that viewing the case “in its entire context,” the parents “received a fundamentally fair trial.” JH, 152 Hawai‘i at 381, 526 P.3d at 358. JH established a harmless error/fairness analysis when counsel is appointed at the start of the case, but is subsequently discharged if the parent fails to participate in the proceedings. JH left our holdings in T.M. and L.I. intact.

The Majority's decision in the present case has the practical effect of eliminating structural error in parental rights cases. The holdings of T.M., L.I., and JH required the appointment of counsel at the point DHS filed a petition for family supervision. “Otherwise, structural error will nullify an outcome adverse to a parent.” JH, 152 Hawai‘i at 376, 526 P.3d at 353.

The Majority, in essence, replaces structural error with an across-the-board case-by-case analysis similar to the United States Supreme Court's majority opinion in Lassiter, which we expressly rejected in T.M. As this court articulated in T.M., “[m]andating the appointment of counsel for indigent parents once DHS moves for custody would remove the vagaries of a case-by-case approach.” 131 Hawai‘i at 435, 319 P.3d at 354. Eliminating structural error leaves the protection of a fundamental right to chance, subject to appellate review, potentially held years after the violation of that right, on a possibly under-developed family court record.

The Majority's decision affirming the family court's termination of Mother's parental rights rests in part on her attendance record and degree of engagement. Active engagement, disengagement, re-engagement, and attendance now appear to be the critical considerations rather than treating the right to counsel as a fundamental constitutional right subject to structural error if counsel is not appointed immediately upon the filing of a petition affecting a parent's rights. The present decision does not reconcile with T.M., L.I., and JH, and there are no cogent reasons to depart from or overrule our prior decisions. See Dairy Rd. Partners v. Island Ins. Co., Ltd., 92 Hawai‘i 398, 421, 992 P.2d 93, 116 (2000) (“[A] court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.”) (quotations and citations omitted); see also State v. Garcia, 96 Hawai‘i 200, 206, 29 P.3d 919, 925 (2001).

T.M. pronounced that parents have a constitutional right to counsel in parental rights proceedings, which L.I. clarified requires that counsel be appointed when DHS files a petition for family supervision, or structural error will apply. T.M., 131 Hawai‘i at 421, 319 P.3d at 341; L.I., 149 Hawai‘i at 122, 482 P.3d at 1083. JH distinguished discharging counsel during a proceeding from failing to appoint counsel at the beginning of a proceeding, but did not overrule T.M. or L.I. Our case law is clear and no compelling reasons have been offered to deviate. If counsel is not appointed when either a petition for family supervision or foster custody is filed, it is per se structural error.

There is an imbalance of power when the State files a petition for family supervision or foster custody, which is exacerbated if an indigent parent is unrepresented. Appointing counsel at the outset will ensure a fair resolution and fair process for all involved. Requiring the appointment of counsel as soon as a family supervision petition is filed, whether an indigent parent is present or not, will protect a parent's constitutional rights, can be expeditiously accomplished by the family court, will serve to expedite the proceedings, and gives a parent and child the best opportunity to preserve the family unit. The appointment of counsel ensures procedural fairness and enhances the protections that both parent and child are entitled to under our constitution.

If counsel is appointed at the start, there is no risk of structural error. Claims that structural error is “unbending,” “unfairly benefits a voluntarily absent parent at the expense of their child,” and negatively impacts a child's best interests overlook the flexibility that JH provides if a parent does not participate in the proceedings after first being appointed counsel. Applying structural error ensures that parents are appointed counsel once their parental rights are “substantially affected,” which this court has held occurs at the moment a petition for family supervision is filed. Structural error does not “upen[d] the child's interest in permanency” because if counsel is appointed at the start of a parental rights proceeding, the parent's constitutional right will be protected and structural error will not apply.

We should follow the same course of precedent charted by this court in T.M., L.I., and JH. In this case, the court appointed Mother counsel over five months after DHS filed the initial petition for family supervision and over four months after the State was granted temporary foster custody and Mother first appeared in court. In L.I., this court held that the failure to appoint counsel for three months after DHS was awarded foster care was a “clear violation of In re T.M.” 149 Hawai‘i at 123, 482 P.3d at 1084. This case is no different and is in fact more egregious.

An indigent parent has an undeniable right to court-appointed counsel, and a parent must and should be provided counsel as soon as a parental rights petition is filed. If a parent subsequently chooses not to participate in the proceedings, despite the availability and advice of counsel, then this court will apply JH’s fairness analysis in deciding whether the parent received a fundamentally fair proceeding.

Accordingly, I respectfully dissent.

FOOTNOTES

1.   Hawai‘i Revised Statutes (HRS) § 587A-33(i) creates a two-year timeline for DHS to file a motion to terminate parental rights if the child is in foster care for fifteen months during that time. HRS § 587A-33(i) (2018) (“Absent compelling reasons, if the child has been in foster care under the department's responsibility for an aggregate of fifteen out of the most recent twenty-two months from the date of entry into foster care, the department shall file a motion to terminate parental rights.”).

2.   We must acknowledge that in the past there has been a disproportionate number of Native Hawaiian and Pacific Islander children represented in Hawai‘i's foster care system. In some instances, the percentage of Native Hawaiians in the Child Welfare System has been almost twice the estimated percentage of Native Hawaiians in the population as a whole. Studies have shown that Native Hawaiian and Pacific Islander children spend more time in the foster care system and are less likely to be reunited with their families. A majority of Native Hawaiian and Pacific Islander children in the Child Welfare System were removed by court order.

3.   The Majority notes that parents’ “disengagement” in these types of proceedings “is not an uncommon feature.” This highlights why it is imperative that counsel be appointed “as soon as” a petition is filed.

4.   “Moreover, 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.’ ” T.M., 131 Hawai‘i at 436, 319 P.3d at 355 (citing Lassiter, 452 U.S. at 51 (Blackmun, J., dissenting)).

5.   The record indicates that the court approved court-appointed counsel for Mother one week after she applied.

AMENDED OPINION OF THE COURT BY EDDINS, J.