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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-OCT-2026
08:44 AM
Dkt. 52 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
IN THE INTEREST OF T.C. AND R.C.
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CASE NO. FC-S 19-0021K)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
Mother-Appellant T.C. (Mother) appeals from the Family
Court of the Third Circuit's August 8, 2025 "Order Related to
Periodic Review and Permanency Hearing" (August 8, 2025 Order),
ordering the State of Hawaiʻi, Department of Human Services (DHS)
to proceed with legal guardianship of Mother's two children by
their paternal grandparents, who live out of state, consistent
with DHS's July 7, 2025 "Updated Permanent Plan" (July 7, 2025
Updated Permanent Plan or the Plan). 1 (Formatting altered.)
1 The Honorable Ann S. Datta presided.
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On appeal, in her points of error (POE), Mother
challenges in part the family court's admission of the July 7,
2025 Updated Permanent Plan into evidence without first allowing
her the opportunity to review (POE A), have an evidentiary
hearing (POE B) on, or cross-examine the preparer of (POE C) the
Plan. We resolve Mother's appeal on the above grounds and do
not reach Mother's remaining points. 2
2 Mother's POE are presented as follows:
A. The family court erred in refusing to provide
Mother with an opportunity to receive and review the
Updated Permanent Plan filed July 7, 2025, before receiving
it into evidence and ordering its implementation. While
[DHS] represented at the July 15, 2025 [Periodic Review and
Permanency Hearing (July 15, 2025 Hearing)] that it had
mailed the document to Mother's counsel on July 7, 2025,
Mother's counsel preserved this point on appeal by
informing the Court that he had not received it (July 15,
2025 TX at p.4-5), by requesting a continuance, and
requesting an evidentiary hearing.
B. The family court erred in refusing to provide
[M]other with an opportunity to have an evidentiary hearing
on the July 7, 2025 [Updated Permanent Plan]. Mother's
counsel preserved this point on appeal by repeatedly
request[ing] an evidentiary hearing at the July 15, 2025
[H]earing (July 15, 2025 tx p.7 lines 1-2; 7-11; p. 8-9).
C. The family court erred in admitting the July 3,
2025 Safe Family Home Report and July 7, 2025 [Updated
Permanent Plan] into evidence without giving Mother an
opportunity to cross-examine the makers of those reports.
[Hawaiʻi Revised Statutes] [§] 587A-18(d) expressly provides
parties with a statutory right to examine the makers of
reports prior to their admission into evidence. Mother's
counsel preserved this point on appeal by repeatedly
objecting at the July 15, 2025 [H]earing that the makers of
the reports themselves were not made available for crossexamination (July 15, 2025 TX p.10, 11, 16, 20, 26).
D. The family court erred when it found at item H,
page 2, that "each term, condition, and consequence of the
Updated Permanent Plan dated July 7, 2025 . . . has been
(continued . . .)
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(. . . continued)
explained to and is understood by each party present at the
hearing". Mother's counsel informed the Court that he had
not even received the report yet. (July 15, 2025 TX at
p.4-5). There was no colloquy between the Court and Mother
(or Father) as to the terms, conditions, or consequences of
the July 7, 2025 [Updated Permanent Plan]. There was no
evidence presented that the terms and conditions and
consequences of said plan were explained to or understood
by Mother (or any other party), because they were not.
Mother preserved this point on appeal by advising the Court
[that Mother's counsel] (and thus, Mother) had not received
the report, requesting a continuance, repeatedly requesting
an evidentiary hearing, refusing to approve the proposed
order, and otherwise objecting to the nature of the
proceedings. (July 15, 2025 TX p.4-5, p.7-9).
E. The family court erred when it made all
additional findings on pages 2 and 3 of the Order filed
July 7, 2025 as follows:
B. The [C]hildren's current placement is
safe and appropriate;
C. Under the circumstances that are
presented in this case, the DHS has made
reasonable efforts to finalize the
concurrent permanency plan which in this
case is reunification or legal
guardianship without termination of
parental rights;
D. The parties have not made sufficient
progress toward resolving the problems
that necessitated placements[;]
F. Each party present at the hearing
understands that . . . etc.[;]
G. Each term, condition, and consequence of
the Family Service Plan dated March 7,
2024, has been explained to and is
understood by each party at the
hearing[;]
I. ". . . the DHS has documented in its
report and on the record at the hearing
the compelling reasons why it is not in
the best interest of the [C]hildren to
file a motion to terminate parental
rights at this time"[;]
(continued . . .)
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Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and vacate and remand.
We recount the factual and procedural background only
as relevant to the instant appeal. Mother has two minor
children (collectively, the Children) from her previous marriage
to J.C. (Father): a daughter, T.C., born in 2009, and a son,
R.C., born in 2012. Mother and Father divorced in 2015.
(. . . continued)
K. The [C]hildren in foster care were given
actual notice of this hearing by written
notice;
L. The [C]hildren have been consulted, in an
age appropriate manner, about the
proposed permanency and/or transition
goal[;]
M. The court has considered in-state and out
of state placement(s) and finds that the
[C]hildren's current out of state
placement is safe, appropriate and in the
best interest of the [C]hildren; [and]
N. The DHS has made reasonable efforts to
. . . "[.]
There was not sufficient evidence in the record to
support those findings absent an evidentiary hearing.
There were no colloquies on the record as stated in the
findings. These errors were compounded by the fact that
the judge sitting at the July 15, 2025 [H]earing was a per
diem who had not previously presided over any proceedings
in the case, and did not demonstrate any familiarity with
the record, so could not have "considered" alternate
placements or made best interest findings at all.
(Formatting altered.)
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Mother lives on Hawaiʻi Island; Father has at various times lived
in Idaho or Utah.
In 2023, the Children were placed with their paternal
grandparents in Idaho. In a January 23, 2024 report to the
family court, the Children's guardian ad litem (GAL) recommended
legal guardianship as the long-term goal:
Legal Guardianship should be the long term goal for
this case, as it is clear that Father cannot provide a safe
family home in the reasonably foreseeable future. It
appears that Mother may be able to provide a safe home for
the [C]hildren when she is released, but the timeline of
that is unclear — and Mother would have to have a
significant period of demonstrable safety before a return
to her home could be made.
A Periodic Review and Permanency Hearing was scheduled
for July 15, 2025 (July 15, 2025 Hearing). On July 7, 2025, DHS
filed its "Updated Permanent Plan," which was signed by Wendy Jo
Robinson (Robinson) of West Hawaiʻi Child Welfare Services. The
July 7, 2025 Updated Permanent Plan again recommended legal
guardianship as the long-term goal:
DHS believes that it is in the [C]hildren's best
interest to be placed under a Legal Guardianship to their
current relative caretakers [without termination of
parental rights]. [TC] and [RC] have languished in foster
care for too long. Mother and Father are unable to provide
a safe family home for them within a reasonable time period
even with the assistance of a service plan. Guardianship
in lieu of adoption is being sought at the [C]hildren's
request.
(Formatting altered.)
At the outset of the July 15, 2025 Hearing, Mother's
attorney objected to the family court receiving the July 7, 2025
Updated Permanent Plan into evidence on the basis that he had
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not received service of the Plan at his Waimea address, despite
the Certificate of Service indicating it had been mailed on
July 7, 2025. Mother's attorney further explained that,
although he was sent a copy of the July 7, 2025 Updated
Permanent Plan by email, he had been unable to open the
attachment after two attempts because the file was encrypted.
Mother's attorney nevertheless acknowledged that he
was aware of and objected to the contents of the July 7, 2025
Updated Permanent Plan: "But I know what the permanent plan is.
And I want to object to the permanency plan and request an
evidentiary hearing. My position is that the permanency plan
should not be guardianship but rather a reunification with
[M]other with the assistance of a service plan." (Formatting
altered.) Mother further challenged the family court's
admission of the Plan into evidence on the basis that she was
"entitled to cross-examine the maker of the report, which is
Wendy Robinson, not anyone else."
DHS argued that it, not Robinson, "prepared that
report" and offered DHS Supervisor Amber Millon (Millon) to be
cross-examined regarding the July 7, 2025 Updated Permanent Plan
and its creation. On cross-examination, Millon testified that
she was standing in for Robinson because Robinson was on
personal leave; the July 7, 2025 Updated Permanent Plan "was
prepared by Wendy Robinson, as well as our staff in the office";
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and "Robinson is the main signature on there." Millon further
explained that she had not "read the whole report," but rather
"vaguely looked over the report . . . because it is not mine."
Millon also testified that she "briefly" discussed the case with
Robinson — "about 10 minutes with her" — and that Robinson "met
with [M]other and [F]ather and . . . was standing by her
report."
At the close of cross-examination, Mother again
"strenuously" objected to the family court receiving the July 7,
2025 Updated Permanent Plan into evidence. The family court
again overruled the objection and received the July 7, 2025
Updated Permanent Plan into evidence. The family court then
orally found that "[t]he proper concurrent permanency plan is
reunification or legal guardianship without termination of
parental rights."
Following the July 15, 2025 Hearing, the family court
entered its August 8, 2025 Order, which contained the July 7,
2025 Updated Permanent Plan. Accordingly, the family court
ordered that "[t]he proper concurrent permanency plan is
reunification or legal guardianship without termination of
parental rights."
Mother timely appealed. Approximately two weeks
later, Mother sought a stay of the guardianship proceedings
pending appeal, which the family court granted in part. The
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family court struck the September 19, September 23, October 7,
and October 21, 2025 contested evidentiary hearings from the
calendar.
In her opening brief, Mother requests that the
August 8, 2025 Order "be vacated and remanded because Mother did
not have a meaningful opportunity to present any evidence
pertaining to the challenged findings, her substantial change of
circumstance, or to cross-examine the makers of the reports
received into evidence."
In its Notice of No Answering Brief, DHS "does not
oppose any of the relief sought" in Mother's opening brief,
namely Mother's request for an "opportunity to present any
evidence pertaining to the challenged findings or to crossexamine the preparer of the reports received into evidence." 3
3 On August 20, 2026, this court ordered supplemental briefing to address whether subsequent developments in case numbers FC-S 19-0021K and 3FGD-XX-XXXXXXX rendered this appeal moot. In particular, this court noted that the Children "may have been reunified with Mother on or about July 1, 2026."
On September 2, 2026, DHS timely filed its supplemental brief, explaining that "significant changes in case direction" rendered Mother's appeal moot. Specifically, DHS "has determined that Mother can provide a safe family home with the assistance of a service plan, withdrawn its legal guardianship petition, and recommend[ed] the return of the Children to Mother's care as soon as deemed appropriate." DHS acknowledges that "the Children are not ready yet" to be reunified with Mother, but "believes that reunification with Mother is appropriate" and "is working with the GAL to get the Children comfortable enough to return to Mother's care."
On September 3, 2026, Mother timely filed her supplemental brief, arguing that the Children "have not been reunified with Mother," the July 7, 2025 Updated Permanent Plan "has not itself been withdrawn or judicially set aside, and the August 8, 2025 Order challenged in this appeal remains
(continued . . .)
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(1) Mother contends in POE A that the family court
improperly received the July 7, 2025 Updated Permanent Plan into
evidence because she was not afforded "an opportunity to receive
and review" it beforehand.
We note Mother does not cite any legal authority in
support of her argument, which consists of a single conclusory
paragraph, and this court may deem the argument waived. See
Kienker v. Bauer, 110 Hawaiʻi 97, 104 n.12, 129 P.3d 1125, 1132
n.12 (2006) ("This argument consists of one paragraph and
neither cites law nor contains cites to the record. The
appellate courts are not obligated to search the record to
crystallize the parties' arguments. Accordingly, this argument
is not considered." (citation omitted)). Nevertheless, we
address Mother's argument to the extent we can discern.
As this court has previously recognized, Mother's
liberty interest in the care, custody, and control of the
Children is subject to the protections of procedural due
process:
(. . . continued)
unvacated." Mother argues "DHS's present recommendation favoring reunification does not provide Mother the effective relief she seeks and does not eliminate the continuing effect of the procedural errors challenged on appeal."
As it appears that Mother's contentions on appeal have not been resolved through subsequent developments, we determine that Mother's appeal is not moot and address the merits. See In re Doe Children, 105 Hawaiʻi 38, 56-57, 93 P.3d 1145, 1163-64 (2004).
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Mother has a fundamental liberty interest in the
right of care, custody, and control of the Children, and
thus "the State may not deprive her of this interest
without providing a fair procedure for deprivation." Doe
v. Doe, 120 Hawaiʻi 149, 168, 202 P.3d 610, 629 (App. 2009)
(citations omitted). "At its core, procedural due process
of law requires notice and an opportunity to be heard at a
meaningful time and in a meaningful manner before
governmental deprivation of a significant liberty
interest." Id. (emphasis added) (quoting State v. Bani, 97
Hawaiʻi 285, 293, 36 P.3d 1255, 1263 (2001)).
In re TC, 150 Hawaiʻi 328, 500 P.3d 513, No. CAAP-XX-XXXXXXX,
2021 WL 6054831, at *3 (App. Dec. 20, 2021) (SDO).
"The due process floor entails 'notice and an
opportunity to be heard at a meaningful time and in a meaningful
manner.'" In re JH, 152 Hawaiʻi 373, 380-81, 526 P.3d 350, 357-58 (2023) (quoting In re Doe, 99 Hawaiʻi 522, 533, 57 P.3d 447,
458 (2002)). "Context shapes the process that is due." Id.
Here, Mother's attorney stated at the July 15, 2025
Hearing that he had not received service of the July 7, 2025
Updated Permanent Plan, despite the Certificate of Service
indicating that it was mailed on July 7, 2025.
Under the Hawai‘i Family Court Rules (HFCR), "[s]ervice
by mail is complete upon mailing." HFCR Rule 5(c)(3). However,
"[a] party who has been prejudiced by failure to receive due
notice or to be served, or who has been prejudiced by reason
that service was made by mail, may apply to the court for
appropriate relief." HFCR Rule 5(d).
Viewed in context, the family court's decision to go
forward with the July 15, 2025 Hearing and to receive the
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July 7, 2025 Updated Permanent Plan into evidence — despite
Mother not having had an opportunity to review it with her
attorney beforehand — violated Mother's due process rights, as
her opportunity to be heard was not meaningful without reviewing
the Plan. See In re JH, 152 Hawaiʻi at 380-81, 526 P.3d at 357-58; In re TC, 2021 WL 6054831, at *3.
Thus, the family court abused its discretion by not
providing Mother an opportunity to review the July 7, 2025
Updated Permanent Plan before receiving it into evidence at the
July 15, 2025 Hearing.
(2) We turn next to POE C, where Mother contends the
family court improperly received the July 7, 2025 Updated
Permanent Plan into evidence because DHS did not offer the
preparer of the Plan for cross-examination as required under
Hawaiʻi Revised Statutes (HRS) § 587A-18(d) (2018). Mother makes
the same arguments regarding the July 3, 2025 Safe Family Home
Report.
HRS § 587A-18(d) provides, "A written report submitted
pursuant to this section shall be admissible and relied upon to
the extent of its probative value in any proceeding under this
chapter, subject to the right of any party to examine or crossexamine the preparer of the report." (Emphasis added.) HRS
chapter 587A does not define the term "preparer of the report."
See HRS § 587A-4 (2018).
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"[A]dmission of a report into evidence under HRS
§ 587A-18(d) is not contingent upon actual cross examination of
the preparer of the report, however such admission subjects the
preparer of a report to cross examination." In re TC, 2021 WL
6054831, at *4. DHS may call as a witness an employee other
than the preparer of the report, so long as the preparer was not
subpoenaed or otherwise compelled to attend the hearing. E.g.,
In re EAC, 152 Hawaiʻi 192, 524 P.3d 383, No. CAAP-XX-XXXXXXX,
2023 WL 1462794, at *3 (App. Feb. 2, 2023) (SDO) ("DHS listed
Fitzpatrick, not Dosland, on its witness list for the contested
case hearing. The record does not indicate that Father or
Mother subpoenaed Dosland or otherwise moved to compel her
attendance to testify at the contested case hearing. The family
court does not abuse its discretion by not requiring testimony
from a witness who was not listed, called, subpoenaed, or
otherwise required to appear at the contested case hearing."
(citation omitted)).
Here, Robinson is properly considered the preparer of
the July 7, 2025 Updated Permanent Plan, because Millon
testified the Plan "was prepared by Wendy Robinson, as well as
our staff in the office"; "Robinson is the main signature on
there"; and Robinson "is the writer" of the "new material in the
report[.]" (Emphasis added.) Millon admittedly "didn't read
all of the report because it is not mine"; "vaguely looked over
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the report"; and "briefly" discussed the case with Robinson for
"about 10 minutes." Millon also testified that she was standing
in for Robinson while Robinson was on leave and that Robinson
would have been "available at another date[.]"
As such, the family court's admission of the July 7,
2025 Updated Permanent Plan subjected Robinson, as the preparer
of the report, to cross-examination. See In re TC, 2021 WL
6054831, at *4. Nothing in the record suggests DHS gave Mother
notice of its intent to offer Millon in Robinson's stead. See
In re EAC, 2023 WL 1462794, at *3. Thus, the family court
should have permitted Mother the opportunity to cross-examine
Robinson as the preparer of the July 7, 2025 Updated Permanent
Plan, and its failure to do so was error. E.g., In re TC, 2021
WL 6054831, at *4 ("[T]he Family Court did not err by admitting
into evidence DHS's Permanent Plan filed on November 23, 2020;
however, admission of this report meant that Mother should have
been allowed to examine or cross-examine those who prepared that
report or any DHS report admitted and relied upon by the Family
Court.").
(3) Finally, Mother contends in POE B that the family
court erred when it refused to conduct an evidentiary hearing
before entering its August 8, 2025 Order. Mother notes that she
was present and prepared to offer evidence regarding her
substantial change in circumstances following her incarceration.
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To reiterate, "procedural due process of law requires
notice and an opportunity to be heard at a meaningful time and
in a meaningful manner before governmental deprivation of a
significant liberty interest." Id. at *3 (citation modified).
And, as this court has explained, guardianship implicates a
parent's fundamental liberty interest:
However, although a guardianship may not absolutely
and irrevocably supersede all the rights of a parent, it
certainly supersedes many of these parental rights, such as
the right to the custody of and to provide care for the
child. See HRS § 560:5-208(a) (2018) ("Except as otherwise
limited by the court, a guardian of a minor ward has the
powers of a parent regarding the ward's support, care,
education, health, and welfare."); 39 Am. Jur. 2d Guardian
and Ward § 90 (2025) ("Until the guardianship of a minor
child is terminated, the guardian's right to custody of the
minor is superior to that of the minor's parent.").
Therefore, the fundamental liberty interest of a parent in
the care, custody, and control of their child is implicated
in guardianship proceedings.
In re Guardianship of I.W., 157 Hawaiʻi 437, 579 P.3d 899,
Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2025 WL 3215249,
at *15 (App. Nov. 18, 2025) (mem. op.).
Here, the family court ordered that the July 7, 2025
Updated Permanent Plan be implemented, which included legal
guardianship of the Children without termination of parental
rights. Awarding legal guardianship to the Children's paternal
grandparents constitutes a significant infringement upon
Mother's fundamental liberty interest in the right of care,
custody, and control of the Children, even if her parental
rights were not terminated. See, e.g., id.
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Because Mother was not afforded an opportunity "to be
heard at a meaningful time and in a meaningful manner" through
an evidentiary hearing on her changed circumstances prior to the
family court's ruling, the family court erred. See In re TC,
2021 WL 6054831, at *3 (emphasis omitted) (quoting Doe, 120
Hawaiʻi at 168, 202 P.3d at 629).
Based on the foregoing, we vacate the family court's
August 8, 2025 Order and remand the case for proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawaiʻi, October 20, 2026.
On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Michael S. Zola,
for Mother-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Charles H. McCreary IV,
Julio C. Herrera, /s/ Kimberly T. Guidry Eric J. Alabanza, Associate Judge
Deputy Attorneys General,
for Petitioner-Appellee.
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