In the Interest of Jane DOE, Born on June 20, 1995, 95 Haw. 201

Opinion of the Court by WATANABE, J. This child protective services (CPS) case requires us to review the propriety of an order of permanent custody that involuntarily divested a mother of her parental and custodial rights and duties (parental rights) in her youngest child. The undisputed evidence in the record is that Appellant, the legal and natural mother (Mother) of Jane Doe, born on June 20, 1995 (Jane), deeply loves and is devoted to Jane.

Jane is equally bonded to Mother, has always been well-dressed and properly cared for while in Mother’s custody, and has never been physically or sexually abused or harmed while in Mother’s care. Mother has no history of substance abuse and has always shown the utmost concern for Jane’s well-being and progress.

Moreover, because Mother earnestly desired to keep her relationship with Jane, she yielded to the advice of social workers and others employed or engaged by Petitioner Appellee Department of Human Services for the State of Hawaii (DHS), who felt that she had “too much on her plate,” and voluntarily relinquished her parental rights in her older children so that she could focus on raising and nurturing Jane.

Nevertheless, the Family Court of the First Circuit (the family court) determined that Mother was not presently willing and able, and it was not reasonably foreseeable that Mother would become willing and able, to provide Jane with a safe family home because “there is no likelihood that she would sufficiently resolve her problems at any identifiable point in the future.” Among the “problems” mentioned by the family court in its decision were:

(1) Mother’s limited insight as to how issues regarding her own physical and sexual abuse affect her judgment and ability to provide for her children’s needs;

(2) Mother’s Dependent Personality Disorder, which “negatively impacts Mother’s ability to provide a safe family home for [Jane] because of difficulty in making independent decisions, tending to choose partners that are high risk, and exercising poor judgment”;

(3) Mother’s passive parenting style;

(4) Mother’s lack of understanding and consistency in providing structure, guidance, and discipline to Jane;

(5) Mother’s inconsistency in attending therapy sessions; (6) the fact that Mother has never been employed and has no training or education that would enable her to secure employment;

(7) Mother’s inability to be protective of Jane; and

(8) Mother’s dishonesty “regarding child care and the status of her living arrangements or personal relationships.” Accordingly, the family court entered a July 30, 1998 order that, in part, divested Mother of her parental rights in Jane, awarded permanent custody of Jane to DHS, and established a permanent plan for Jane (Permanent Custody Order). Based on our review of the record in this case, we conclude that there was no clear and convincing evidence before the family comí; to support the entry of that part of the Permanent Custody Order that divested Mother of her parental rights in Jane.

Accordingly, we reverse that part of the July 30, 1998 Permanent Custody Order that divested Mother of her parental rights in Jane and awarded permanent custody of Jane to DHS. BACKGROUND Bom on October 15, 1965, Mother was physically and sexually abused by her father (Grandfather) when she was between ten and fourteen years old. She kept the abuse a secret until she was seventeen years old and, following her disclosure, received counseling.

Mother became pregnant when she was fifteen years old and gave birth on October 30, 1981 to her first child (Oldest Daughter), the product of a two-year relationship with Oldest Daughter’s father. Unfortunately, history repeated itself and Grandfather, at some point not clear from the record, sexually assaulted Oldest Daughter. In 1986, Mother married a man (Legal Father), with whom she had three children: Son 1, born on July 19, 1986; and twin sons, Sons 2 and 3, born on June 8, 1989. Legal Father was allegedly an alcoholic who physically abused Mother and the children.

He also sexually assaulted Oldest Daughter and, as a consequence, was convicted, sentenced, and deported to Western Samoa, with orders not to return to Hawai'i until 1996. In April 1988, the allegations of physical and sexual abuse by Legal Father prompted DHS to file a petition on behalf of Oldest Daughter and Son 1 (the twins had not yet been born), seeking to protect them from sexual and physical harm, respectively, by Legal Father (CPS Case No. 1). Son 1 was returned to Mother’s home that same month. Oldest Daughter was initially placed in foster custody.

However, about six years later, in May 1994, the family court revoked its foster custody order and appointed a guardian over Oldest Daughter. DHS then closed CPS Case No. 1. On July 21, 1991, Mother gave birth to Daughter 2, the product of Mother’s relationship with a third man. In April 1993, Mother informed DHS that she was involved with Defendant Father (Father).

DHS learned thereafter of allegations that Father had physically abused his children by a prior marriage; DHS also learned that Father had been convicted, incarcerated, and was then on probation for sexually molesting his daughter by the prior marriage. Among the terms of Father’s probation was that he have no contact with children and that he participate in services for sex offenders.

In February 1995, DHS filed a petition seeking foster custody of Sons 1, 2, and 3 and Daughter 2 (CPS Case No. 2) “due to threatened harm and lack of medical/mental care by Mother and because Mother failed to voluntarily participate in recommended services.” On March 28,1995, all four children were placed in DHS foster custody. Meanwhile, as a result of her relationship with Father, Mother had become pregnant, and on June 20,1995, she gave birth to Jane at the Kapiolani Medical Center for Women and Children (KMC).

Father was present for the birth, having received permission from his probation officer to attend the delivery. The next day, police officers showed up at KMC and, pursuant to Hawai‘i Revised Statutes (HRS) § 587-22 (1993), took Jane into protective custody and turned her over to DHS, which placed her in a foster home. PROCEDURAL HISTORY A.

The Petition for Temporary Foster Custody On June 23, 1995, three days after Jane was bom, DHS filed a petition for temporary custody (the Petition) in the family court, alleging that there was “a reasonable foreseeable substantial risk that harm may occur to [Jane] based upon an assessment of the criteria set forth in HRS [§] 587-25.” The Petition requested that: (1) an inquiry be made into allegations that Jane’s “physical or psychological health or welfare [was] subject to imminent harm, harmed[,] or subject to threatened harm by the acts or omissions of [Jane’s] family”; (2) temporary foster custody of Jane be awarded to an appropriate authorized agency; (3) jurisdiction be established over Jane and other appropriate family members; (4) such other orders be entered as the family court deemed appropriate; and

(5) Mother’s and Father’s respective parental rights be terminated “unless the family is willing and able to provide [Jane] with a safe family home, even with the assistance of a service plan, within a reasonable period of time.” The facts and circumstances mentioned in the Petition as supporting the allegation that Jane was subject to “a reasonable [sic] foreseeable substantial risk of harm” included the following:

(1) Mother’s five other children were already in foster care or under legal guardianship as a result of DHS’s intervention in two other CPS cases;

(2) Mother’s compliance with court-ordered services in her other CPS cases had been poor;

(3) Mother was still married to Jane’s Legal Father, who had been convicted of sexually abusing Oldest Daughter and accused of physically abusing Mother and her other children;

(4) Mother remained in a relationship with Father, even though she knew of Father’s prior criminal history; and

(5) Mother had allowed Father to spend the night in the same bedroom as Daughter 2. B. The Adjudication Hearing on the Petition The adjudication hearing on the Petition was held before the family court on July 10 and 13, 1995. Three witnesses testified for DHS. Dr. Steven Choy (Dr. Choy), a clinical psychologist employed by KMC as the Director of the Kapiolani Child Protection Center, testified that “this is a case where there has been generational sexual, physical abuse in addition to neglect.” Based on his review of the case files and past records involving Jane’s family, Dr.

Choy opined that “the risk of neglect and physical abuse [of Jane]-by partners also-would be high.” Dr. Choy explained that in his experience, and based on “child development knowledge, a child under five is the most vulnerable child to both neglect and abuse.... An infant [Jane’s] age-in fact, all of our eases as we did studies on them, show that severe abuse and death cases occurred with children under the age of three. So, that the risk becomes extremely high for that age group.” Dr.

Choy stated, however, that “[t]he issue of the sex abuse is something that is less prevalent at this point given the age of the child.” Dr. Choy testified that although he had not personally interviewed Mother, he had reviewed a psychological evaluation of Mother done by Dr. Russell Loo (Dr. Loo) and that Dr. Loo’s diagnosis was that Mother had “a dependent personality disorder.” Dr.

Choy explained that [a] pei’son who has a dependent personality disorder basically is an individual who has an extreme difficulty making independent decisions, tends to rely on other people to make decisions or control that person’s life. Generally the person -with this disorder tends to choose and—and there has—if you look at the historical aspect of this disorder to qualify—generally chooses spouses or relationships that are abusive in nature. The—the—they’re at a high risk of problems with neglect and poor judgment because of their inability to make independent decisions. Dr.

Choy opined that based on Mother’s personality disorder, coupled with Mother’s history of being abused and neglected and Mother’s failure to follow through with recommended services, “the prognosis would be poor in terms of her being able to take care of her child—an infant.” On cross-examination by Mother’s counsel, Dr. Choy admitted that his opinions were based on his review of previous case files in which the “last major input was ... the ending and beginning of 1990, 1991.” Dr.

Choy testified that he did not have any personal knowledge of Mother’s current situation and did not know that Mother and Father were not residing together, a factor that “would make a difference.” Dr. Choy also stated that he was not aware that Father was on probation, was being supervised by a probation officer, and was not allowed, under the terms and conditions of his probation, to be present with children. Finally, Dr.

Choy admitted that he did not realize that Legal Father, who was alleged to have physically abused Son 1 and sexually assaulted Oldest Daughter, had been convicted, sentenced, and deported for his sexual assault of Oldest Daughter, and was no longer in Hawaii to endanger Jane and her half-siblings.

Jean Oshiro (Oshiro), Father’s probation officer, testified that one of the terms of Father’s probation was that “he’s not to make—not make or attempt to make contact directly or indirectly with any minor child or reside in the same residence with minor children without he [sic] permission of the probation officer.” However, Oshiro learned after the fact that Father had allowed Mother into his bedroom with Daughter 2. Oshiro testified that Father “had asked for permission to visit with [Jane]. And the—the terms of that was that he was going to visit with supervision at the CPS office.

And I said that was okay.” On cross-examination, Oshi-ro confirmed that following the incident in which Father had allowed Mother into his bedroom with Daughter 2, Father had done nothing to cause Oshiro to feel that she needed to file a motion to revoke Father’s probation. The final DHS witness was Yumi Kawaji (Kawaji), the social worker (SW) who filed the Petition on DHS’s behalf. Kawaji testified that the DHS case involving Mother’s family had been transferred to her sometime in July or August of the previous year.

Sometime in the middle of October 1994, Kawaji explained, DHS began receiving calls “from Makaha Elementary School expressing concerns for the deteriorating condition of [Sons 1, 2, and 3].” Kawaji stated that she had also received calls from family members and community and service providers expressing concern that Mother “had become non[-]compliant and wasn’t following through with services and that the children were being neglected for periods of time.” Kawaji testified that because of the following concerns about Mother, DHS believed that Jane was in imminent harm and in need of temporary foster custody: [S]he failed to participate consistently in the parenting and support group services provided through visitation center, even before she provided us with her medical note.

She has been resistant to participating in services to address her own sex abuse, physical abuse and her own issues from childhood, which continue to be unresolved. And she continues to insist that she does not understand why the other children were placed out of her care to begin with. And she continues to insist that she does not want—she does not understand why [DHS] has some concerns about her choice of relationships. We’re not saying she can’t do it, but she fails to understand any of the protective issues. And those are [DHS’s] concerns.

Aid again, the history—the long history and the non[-]compliance, her impaired judgment the Department believed was cause for concern—for imminent concern[.] To briefly summarize [DHS’s] concerns ... if mom can’t protect that’s a big concern. And her actions and her inability or lack of motivation or little bit of both to do services and make progress is a concern. ... However, the failure to progress, the failure to initiate and to engage in services—which is a chronic pattern—contributed to our decision to place into foster care.

Kawaji testified that she would not consider placing Jane with her maternal grandmother or aunt because this case involved “generational abuse, ... generational lack— lack of protection, ... generational protection of adults and their perpetrators versus the victims.” When asked by Mother’s defense counsel what Mother needed to demonstrate to DHS before Jane could be returned to her, Kawaji stated: In addition to participating in home[-]based services and/or participating in parenting and the support groups, codependency groups, [DHS] must insist this time that [Mother] participate in and make progress in areas of her own abuse, her own molestation, her own family dynamics and co-dependency. [Mother] must demonstrate a commitment to her own self healing—if you want to call it that.

Without that, there is concern that she will not be able to recognize harm should it be happening, that she would be able to adequately protect her children from—from being set up for harm—if j'ou want to call it that. So [DHS] believes very strongly that given this history, [M]other must engage in and make progress in her individual psychotherapy and address her own issues of victimization. On cross-examination, Kawaji was asked about DHS’s closure of CPS Case No. 1. Kawaji stated that the case was closed with respect to Oldest Daughter because Oldest Daughter had been placed in guardianship.

With respect to Son 1, the case was closed because Mother had at least minimally complied with the service plan ordered for her by the family court so that there was at least minimally adequate parenting.

When she was asked to explain the circumstances that prompted DHS to file CPS Case No. 2 against Mother, Kawaji stated that after DHS began receiving calls from service providers, DHS was “concerned about neglect as well as threatened harm.” The following colloquy then transpired as to what harm Son 1 was threatened with: Q. —well, as I understand it, your testimony was that your—your reports were that he wasn’t being taken care of. That was the— A. There was the report that he wasn’t being take [sic] care of, correct. Q. Right. Neglect. There was no problem with getting beaten up or anything like that? A.

No, not with getting beaten up. No. Q. Okay. So, and as a matter of fact, [Son 1] is one of those young children who—who does have sort of a learning deficits [sic]? A. He has attention deficit. Q. Attention deficits and he needs medication— A. Yes. Q. —that type of thing? And that was one of the problems that— because of his—his extra needs, that— service providers felt that he was being neglected or he wasn’t getting enough attention, isn’t that right? A. I don’t believe it was because of this extra needs that they were—they thought he was being neglected.

He was being neglected because [Mother] was leaving them with various people irregardless of whether he had attention deficit or not. On further cross-examination, Kawaji admitted that DHS’s Petition did not allege that Mother was in any way neglecting or physically abusing Jane, or causing Jane to be sexually abused. Kawaji insisted, however, that based on numerous anonymous and confidential phone calls, DHS believed that Jane was subject to threatened harm.

Ka-waji recalled, for example, that an anonymous call had been placed to DHS, alleging that Mother had mentioned to relatives that she planned to take Jane to Father’s house since she didn’t believe that DHS would be out to her home for at least a week.

Kawaji stated that Mother had been “non-eompliant” and had “broken terms of court orders in the past.” For example, Mother did not perform certain required services during her pregnancy with Jane, claiming that she was required to “be on bed rest.” Kawaji admitted on cross-examination, however, that Mother had provided a doctor’s slip, confirming that she was to be on bed rest, although Kawaji was not sure exactly when Mother started to need bed rest.

Regarding Mother’s inability to protect Jane from harm, Kawaji testified that DHS was concerned about “[s]exual, physical, and alcohol abuse” by various perpetrators, specifically Grandfather, Legal Father, and Father.

Kawaji mentioned, for example, that Mother’s ability to protect Jane from Grandfather was of concern because “Mother’s thinking that [Grandfather’s] dying of cancer and he’s harmless,” but it’s “a myth ... that because they’re old, they’re harmless, innocent people.” As to Mother’s ability to protect Jane from Legal Father, Kawaji acknowledged that Legal Father had been deported to Samoa and was “gone.” Furthermore, Kawaji testified that the primary focus of DHS’s Petition was Father.

Mother testified at the hearing that she understood that Father was on probation and was subject to restrictions during his visits with Jane. She also was aware that Father needed to obtain permission from his probation officer before he could be present with Jane and, as a result, she had insisted that Father get permission so he could be present for Jane’s birth. Mother stated that at twelve o’clock the day after Jane was born, she was supposed to breast-feed Jane; however, she was told by a nurse that she “could not take the baby out of the nursery until [she] talked to the worker.

And then the worker, ... wanted [Mother] to sign this paper to put the child in foster custody.” Mother stated that she had planned to go home to her house in Wai'anae after leaving KMC and that her mother and sister-in-law were waiting for her.

Mother had a crib “all set up in [her] room[,]” had bought diapers, “had everything, ... had her car seat all ready, [and] ... had [Jane’s] clothes for her to come home in.” She had no plans to go to Father’s house because “[o]ver at his house there’s no crib for the baby.” Regarding her relationship with Father, Mother acknowledged that at one time she said she was going to break up her relationship with him.

However, she testified that she and Father talked it over and figured “maybe we could be a family together, resume—you know, he loves my kids, he never did hurt none of my kids.” Mother testified that she was aware of DHS’s concerns and “wouldn’t let nothing happen to my kids.” According to Mother, Grandfather has never seen Daughter 2 and that because of what Grandfather had done to Mother, “alls he get is pictures of [Daughter 2].” Mother testified that she had protected her kids, especially Daughter 2, because she didn’t want Daughter 2 to go through what Oldest Daughter did.

She admitted that she had taken Daughter 2 to Father’s house “once or twice” but testified that she wasn’t aware, until she later talked to Father’s probation officer, about the condition of Father’s probation. When questioned about how she squared her claim that she protected Daughter 2 with her having brought Daughter 2 on a visit to Father’s home, Mother stated: “I was there with [Daughter 2] all the time. I never let her go.

She was with me twenty-four hours a day.” Mother also testified that she had taught Daughter 2 that she should never let anybody touch her “down there” and that she should let Mother know right away if she were touched “the wrong way[.]” Regarding DHS’s allegations that she had not consistently participated in court-ordered services in the related CPS cases, Mother testified that she had been going to her parenting class and had five more weeks to go before getting her diploma.

Mother acknowledged that she had missed some of her support group meetings but noted that she regularly visited with her children, except when she had a doctor’s appointment or her “kids were sick[.]” She also confirmed that she did most of her court-ordered services until she was ordered to bed rest during her pregnancy with Jane. C.

The Order Awarding DHS Temporary Family Supervision Following the contested hearing on the petition held on July 10 and 13, 1995, the family court determined that Jane was not in imminent danger of harm as defined in HRS § 587-2 (1993) and awarded temporary family supervision, rather than temporary foster custody, over Jane.

The family court then ordered Mother to: • participate in individual therapy to address her sex abuse issues • make an appointment and attend her appointment with the service providers regarding sex abuse counseling piior to Jane being returned home • participate in family counseling • paiücipate in parenting classes, including home[-]based services • participate in counseling related to domestic violence • participate in an update psychological evaluation if recommended by DHS • provide DHS with a list of her child care [sic] providers • keep all appointments.

Father was ordered to continue with sex abuse treatment and anger management classes, pursuant to the terms of his probation. The family court ordered the parties to return for a healing on July 31,1995. D.

The Order Awarding DHS Family Supervision At the July 31, 1995 return hearing, the family court found, based upon the reports submitted pursuant to HRS § 587-40 (1993) and the court record, that there was “an adequate basis to sustain the petition in that [Jane] is a child ... whose physical or psychological health or welfare has been harmed or is subject to threatened harm by the acts or omissions of Jane’s family.” The family court awarded “family supervision” rather than “foster custody” over Jane and ordered that:

(1) DHS and Jane’s guardian ad litem (GAL) prepare separate reports;

(2) DHS prepare an appropriate service plan; (3) copies of the reports and plan be submitted to the family court and all parties by August 17, 1995; and (4) the parties appear at a service plan hearing on September 1,1995.

The family court also ordered Mother to refrain from allowing contact between Jane and Grandfather, and to “inform all child care [sic] providers of all existing [CPS ease] orders concerning [Jane].” Additionally, the family court entered an order, enjoining and restraining Father from personally contacting Jane (including phoning, visiting, and remaining within three blocks of Jane’s residence), except as arranged and approved by DHS, in consultation with Jane’s GAL and Father’s probation officer. E.

DHS’s Assumption of Foster Custody Over Jane On August 14, 1995, DHS removed Jane from Mother’s home and assumed “foster custody” of Jane because on August 10,1995, during a visitation with Jane at a DHS office, Mother and Father allegedly violated (1) the family court’s restraining order prohibiting Father from having contact with Jane except when approved by DHS, the GAL, and Father’s probation officer, RA 136-38; and (2) the terms and conditions of Father’s probation.

On August 24, 1995, as a result of Father and Mother’s alleged violation of the restraining order, DHS filed a Motion for an Immediate Review Hearing on Jane’s status. In a Safe Family Home Guidelines Report dated August 21, 1995 that was attached to DHS’s motion, DHS described the events that precipitated the motion as follows: According to parents, [Mother] arrived with [Jane] at the DHS office on 08/10/95 a little after 3:00 p.m. for [Father’s] supervised visit with their daughter.

Parents apparently waited for about 15-20 minutes in the waiting area (which is the authorized waiting area for parents until visitation supervisor from CPS Outreach Program shows up). The visitation supervisor later informed the DHS [Social Worker (SW)] that she did not come to supervise the visit because [Mother] did not confirm the visit the day before. She was at her office that afternoon working on reports and had already left by the time that [Mother] called their office a little before 4:00 p.m.

Parents stated that since the supervisor did not show up, they accepted the offer of the security to go into a private visitation room. They did not inform the security that they were given strict instructions by the DHS SW to wait in the waiting area and that they were to abide by probation and protective court orders. [Mother] stated that she breastfed the baby in the room with [Father], but that for the most part, she stood in the doorway of the room with the door open and [Father] was in the room.

In talking separately with [Father], he stated that after they went to the private visitation room, he was in the room and [Mother] stayed in the doorway with the door open. The DHS SW asked him where the infant was and he replied that she was being held by [Mother] the entire time. When confronted by the DHS SW that they had all been in the private room together without any supervision at all during the while mother breastfed the infant, he stated, “Oh, yah, yah.” He denied any other contact with the child. Mother denied any other incident.

In further follow up with DHS staff members, the DHS SW was informed that [Father] was observed by staff to be directly feeding and/or holding the baby without any authorized visitation supervisor present. [Mother] and [Father] have repeatedly been told in person, at [the family court], by telephone, at the DHS office, by the Probation Officer and DHS SW, and in written form that [Mother] is not an authorized supervisor of visit between [Father] and any minor children.

Even after repeated questioning by the DHS SW, both parents omitted the fact that [Father] had direct access to the child in a private room without any authorized supervision. When confronted by the DHS SW in an office meeting with the GAL present on 08/17/95, both parents’ initial reaction to the situation was to continue to blame lack of understanding of the orders, lack of clarification of the visits, and the security guard for offering them the room. Most of the parents’ energies, especially [Mother’s], was to place blame elsewhere and minimize the situation.

On 08/14/95, [Mother] was contacted by DHS SW Robert Sanchez in consultation with this DHS SW [Kawaji]. She was informed that the DHS had decided to place [Jane] into Foster Care. She stated that she made only one mistake and should not be punished. Again, she fails to accept responsibility for her poor judgement [sic] and minimizes the situation.

This “mistake” is part of a continued pattern of behavior that [Mother] has enyaged in for the duration of CPS involvement with her family over the past 10 years. (Emphases in original.) At an August 29, 1995 hearing on DHS’s motion for immediate review, Mother’s counsel argued that what happened at the CPS office on August 14, 1994 did not warrant a revocation of family supervision.

Mother’s counsel explained that when Mother and Father were in the DHS waiting room, awaiting the arrival of the aide who was supposed to supervise the visitation, Jane got hungry and Mother asked a security guard where she could go to nurse Jane. After being directed by the security guard to a private visitation room, Mother and Father went to the room and Mother breastfed Jane. Because the aide still had not arrived after Jane was fed, Mother went out of the room to ask the security guard where the aide was. At that point, it was determined that the aide wouldn’t be coming, so Father left.

Mother’s counsel argued that although Mother and Father now realized that they should have advised the security guard of the temporary restraining order (TRO) against Father, it was understandable that with Jane crying to be fed, Mother being directed by a DHS security guard to a private room to feed Jane, and the presence of other DHS staff and clients in the area, Mother and Father would not realize that the TRO would be violated by Father being present in the private room with Jane.

Following the hearing, the family court revoked its prior award of family supervision, awarded DHS “foster custody” over Jane, and ordered that a service plan and agreement (service plan) between DHS, Mother, and Father, dated August 21, 1995, be implemented. Mother and Father were permitted reasonable supervised or unsupervised visitation with Jane at the discretion of DHS and the GAL. The family court also ordered that the parties appear at a Review Hearing on February 29, 1996 and that DHS provide Mother visits with Jane at least four times a week. F.

Jam’s Return to Mother Under Family Supervision On December 12, 1995, Mother filed a motion for an early review hearing to authorize family supervision and the return of Jane, as well as Sons 1, 2, and 3 and Daughter 2, to Mother. Attached to Mother’s motion were three exhibits that Mother claimed documented that she was in substantial compliance with the service plan. On December 20, 1995 the family court entered an order granting in pail; and denying in part Mother’s motion for an early review hearing.

Pursuant to the order, Jane and Son 1 were to be returned to Mother under family supervision by December 29, 1995, provided that Mother participated in a number of services. The family court also ordered, however, that foster custody of Sons 2 and 3 and Daughter 2 be continued. On December 27, 1995, Jane was returned to the family home under DHS “family supervision.” G. The Continuation of Family Supervision At the next four review hearings held on February 29, 1996, August 1, 1996, January 17, 1997, and July 8, 1997, the family court ordered the continuation of family supervision over Mother, Jane, and Son 1.

The reports by Jane’s GAL and a DHS SW that were filed prior to these review hearings all indicated that Jane was happy, healthy, active, and not experiencing any serious developmental delays, except for a motor skills problem and a stiffness in her gait for which she was receiving weekly treatments.

Additionally, it was reported that Mother was appropriately caring for Jane, both Mother and Father were attending the different therapy sessions they had been ordered to attend, the family dynamics had improved, and the parents had been making slow and positive progress towards the goal of providing a safe home for Jane and her half-siblings.

Concerns were expressed, however, about whether Mother would ever be able to completely protect Jane from predatory behavior by Father and “reach an adequate level of understanding to reunify with her younger children.” A concern was also expressed that five children were too many for Mother to adequately parent. Because of these concerns, Jane’s GAL stated that the “DHS will have to decide whether or not they want to close this case or continue to supervise [Mother’s] progress in [Adults Molested as Children] and other types of services.

If their position is that [Mother] will never be able to keep her female children safe from potential sexual predators, then they must make that position known and move forward with a permanent plan for [Jane].” Among the exhibits offered into evidence at the January 17, 1997 hearing were two letters from Katherine Green (Green), a clinical therapist at Kahi Mohala outpatient clinic, in which Green stated that Mother had attended eighteen individual therapy sessions, participated actively and cooperatively in individual and couples therapy with Father, and “understands the need to provide safety in the home for her children in terms of physical and sexual abuse.” Green also offered the following assessment of Mother’s progress in therapy: [Mother] has been working to her capabilities to improve her skills and knowledge as a parent.

She is sincere and motivated to maintain safety in her home for her children and understands what is necessary to do so. There are no indications that she is suffering from problems with substance abuse, denial, paranoia or even clinical depression that would cause her to act irresponsible [sic] as a parent. The concerns [Mother] presents in therapy sessions are genuine fears regarding losing her children to the system. She states she is following the rules and expectations set for her by CPS which includes attending individual therapy, couples therapy and parenting meetings.

However, she feels others are not giving her credit for making “progress” and has become rather distraught about what more she needs to do to prove her worth as a mother. [Mother’s] goals are simple and appropriate, and that is to have her family back together. I believe that it would be detrimental to [Mother’s] hopes, trust, self esteem and future productivity to be denied of the opportunity to parent her children following her extensive participation in treatment requested by CPS. It is my recommendation that [Mother] be given at least a trial period to demonstrate her abilities to care for her children.

This may be full time for a certain period or with long term visits such as extended weekends, where family dynamics can be assessed and monitored. Overall, I feel [Mother] should at least have the opportunity to take on the responsibility of her children, before consideration of any permanent removal is made.

A Safe Family Home Report, dated June 19,1997, prepared by a DHS SW and offered into evidence at the July 8, 1997 hearing, noted that Jane “is obviously bonded to her mother and is an active child.” The report expressed concern, however, about Mother’s parenting style: The in-home service providers consistently report that [M]other’s style of parenting is often one of “restraint,” meaning that she tends to use the crib and/or high chair as a babysitter.

She tends to prefer “boxing-in” [Jane] to make it easier for her to parent [Jane] and needs to be encouraged to allow the child to explore and get around, even if it means that [M]other must be a more active and interactive parent. The DHS SW has received several reports from supervised visits stating that even during these visits, [M]other has difficulty supervising all the children, and at times, seems unaware and/or unable to recognize and address safety issues in a timely and/or consistent manner.

The Public Health Nurse (PHN) reported that there is not a lot of eye-to-eye contact between [M]other and [Jane], and that she does not do much “talking” with [Jane].... ... At this time, overall, it appears that [M]other is meeting [Jane’s] needs, but there continues to be concerns as to how she will parent [Jane] as she gets more and more active in her toddler years and if she truly can provide her daughter with the much needed age-appropriate stimulation and structure to meet the child’s changing and growing needs. H.

The Revocation of Family Supervision and Placement of Jane in Foster Custody On September 16,1997, Jane was placed in foster custody after a DHS SW arrived at Mother’s house with police officers and found Jane alone with a teenager named “Ann,” who had not been identified as a member of the household or an approved caretaker for Jane. Thereafter, on September 25, 1997, DHS filed a Motion for an Immediate Review Hearing to Revoke Family Supervision and Award Foster Custody to DHS.

According to the Safe Family Home Report, dated September 22, 1997, that was attached to the motion, Jane was placed into foster custody on September 16, 1997 “as a result of [M]other’s failure to comply with services for the child, her inconsistency with therapy services, lack of appropriate supervision of the child, neglect, and threatened harm.” At the hearing on DHS’s motion on September 30, 1997, Mother’s counsel represented that he had discussed the matter with Mother, and although Mother did not agree with everything written in the report and had brought her personal calendar to Kawaji to demonstrate that she had substantially complied with requirements that she participate in certain services, she was willing to have foster custody continue “with the understanding that—that at some point she can ask for a[sic] early review if—if it’s appropriate.” Accordingly, the family court ordered that the foster custody of Jane assumed by DHS on September 16, 1997 be continued, with parents allowed reasonable supervised visitation with Jane at the discretion of DHS and the GAL.

The parties were ordered to appear at a review hearing on January 22, 1998. I. The Motion for Order Awarding Permanent Custody On October 24, 1997, DHS filed a Motion for Order Awarding Permanent Custody and Establishing a Permanent Plan.

The motion sought an order revoking the existing service plan and revoking the prior award of foster custody, awarding permanent custody to an appropriate authorized agency, which permanent custody order will terminate parental and custodial duties and rights, and establishing a permanent plan relating to [Jane], which plan will propose adoption or permanent custody for the child until subsequently adopted or the child attains the age of majority.

At the hearing on DHS’s motion on November 4, 1997, DHS requested that this case be consolidated with CPS Case No. 2 (involving Sons 1, 2, and 3, and Daughter 2) and that trial for the consolidated cases be set. The family court thereupon ordered the continuation of foster custody and the existing sendee plan, set the matter for a Judicial Pretrial Assistance (JPA) mediation on December 18, 1997, and scheduled trial for March 18, 19, and 20,1998.

At a February 26, 1998 pre-trial conference, Mother agreed to allow DHS to assume permanent custody of Jane’s half-siblings, Sons 1, 2, and 3, and Daughter 2, thereby giving up her parental rights to those children. Following the conference, the family court entered a written order that continued the previously ordered service plan and Jane’s foster custody status, set aside the trial that had been scheduled for March 18, 19, and 20, 1998, and ordered the parties to appear at a review hearing on April 9, 1998.

The order also stated that “DHS and GAL, in consultation with the therapists, Marjorie Higa Funai (Funai) and Green, will consider return of [Jane] to Family Supervision and make efforts to effect reunification as soon as it is considered appropriate[.]” J. The Evidentiary Hearing on DHS’s Motion for Permanent Custody At the hearing on DHS’s Motion for Permanent Custody held on July 9, 1998, seven witnesses testified, including Jane’s GAL. 1. Kawaji testified that Jane is a “special needs child” whose needs would make it difficult for an “average parent” to raise her.

Additionally, Kawaji agreed that a “parent with deficits in parenting skills or knowledge [would] have a harder time raising a special needs child as compared to a parent working with a healthy child[.]” Kawaji opined that Mother would not be able to provide for the needs of Jane, who was exhibiting the same patterns of difficult behaviors and special needs as her older half-siblings, because Mother was not able to provide the “proper structure, stimulation, consistency in the family home[.]” Kawaji recalled that at the time the Petition was initially filed, her concern was that Mother had been inconsistent or non-eompli-ant in attending mental health, parenting, and other services she had voluntarily agreed to attend, and could not “care for [Jane] and be protective.” A “major concern” at the time was that Mother was not being honest in setting limits in her relationship with [Father] because at that time they were together.

She had been saying they’re not together, they’re together; they’re not together and so that unclear status was a red flag for the Department and myself. The fact that she was not willing to acknowledge the fact that [Father] has a sex abuse conviction was a concern for the Department. Those were serious red flags at that time. The concern was that [Mother] has a dependent personality disorder....

And although it says in partial remission again the concerns were that without consistent structure and monitoring what kind of choices [M]other may make and the concerns were that I could not trust that [M]other would abide by protective orders or restraining orders which became an issue in the following months. Kawaji admitted that she “was not concerned that [Mother] would physically abuse the children[.]” Instead, the concerns regarding Mother were that she would not be able to be protective of the children.

That she has a history of impulsive and/or poor choices in her partners as well as the child care providers that she chooses. And—and again the ... long and serious history and chronic pattern of neglect. Kawaji also testified that although three years have passed since the Petition had been filed, Mother still was not able to provide Jane a “safe family home” because she lacked “commitment,” “stiektoitness,” and “the ability to just endure the trying times of a parent.” According to Kawaji, Mother’s deficits were concerning because [M]other’s parenting skills are minimal and [Jane’s] special needs are so high.

The gap is it is just that much bigger so that I’m seriously concerned about that. And—and her lying just—about some real serious issues such as child care of the child that young makes me very, very concerned. Her thinking that someone with a serious physical abuse history such as [Oldest Daughter’s] father last summer would be an appropriate caretaker for the child. That—that a teen could be an appropriate child care person for a child with high special needs. Her attitude that I can be protective ‘cause I’ll keep her with me twenty-four hours a day.

It just demonstrates to me an unrealistic and/or unrealistic parenting ideal or protection plan as well as continued inability to understand her concerns. With respect to Mother’s compliance with recommended sendees, Kawaji testified that DHS had referred Mother to home-based services for a year, parenting classes, therapy services, mental health services, and “all the services that we could within reason.” The services were intended to address [Mother’s] own history of her own family of origin, her own sex abuse, physical abuse and psychological abuse concerns.

I would like for [Mother] to understand how her own abuse is not her fault but however that it affects—it does impact and affect her ability to parent her own children. Perhaps [Mother] is not in denial about her own sexual abuse. She’s about to talk about it now. Has found support in some people to talk about it. But my concern is her inability to see that her choices continue to place her children at the same kinds of risks for harm. So, in that sense I—I do have concerns but although she can articulate her own abuse that she is still unable to be protective ‘cause she can’t see the harm.

So, the therapy was the goal of helping her to address the issues of neglect, it’s [sic] impact on children, her being able to see her role in the children’s special needs and how perhaps not maliciously but unknowingly she has been a part of the children’s problems, the behaviors and she should be able to accept responsibility for that as well as to be able to make better choices and judgments in her partners and her support system.

And to also be able to increase her own self esteem so that perhaps she can take better care of her own needs instead of always running herself thin because she’s looking out for the needs of others, to decrease her stress level so that she can again better focus on her needs and perhaps then better be more empathie towards the children’s needs, to develop empathy of the children.

Kawaji testified that although Mother had worked with the “home base service provider until that case was elosed[,]” she had been only “in partial compliance, inconsistent with the visits that are provided to her.” Additionally, Mother did not complete the parenting services she had been referred to until she was discharged from the program and given a “second try” to complete the services.

With respect to the mental health services that Mother had completed or partially completed, Kawaji opined that Mother does “not have the insight to internalize what she’s learned.” Kawaji’s testimony about Mother’s failure to comply with services, however, was somewhat at odds with the Safe Family Home Guidelines progress reports that she periodically submitted to the family court during the proceedings below.

In a report dated Feb-raary 29, 1996, for example, Kawaji reported partly as follows: During this report period, [Father] and [Mother] have consistently attended Parents Anonymous Classes and are recommended for continued participation. [Mother] continues in individual therapy. She transitioned from Waianae Coast Sex Abuse Treatment Center to a private therapist, Barbara Porteus, Ph.D., around November 1995. Unfortunately, [Mother] failed to sign the necessary consents with Dr. Porteus until 02/23/96, so the DHS SW was not able to consult directly with Dr. Porteus. Dr.

Porteus told [Mother] she could not share information until the consents were signed.... [Mother] participated in services with the [Child and Family Services] Visitation Center and was recommended to begin unsupervised visits with the three children who are still in Foster Care at this time. These visits began this week. A report dated July 29, 1996 that Kawaji submitted to the family court states that [p]arents have participated in Psychological Evaluations.... Mother has begun individual therapy with Dr.

Stein at Kahi Mohala. [Father] has agreed to participate in on-going individual/] oini/group therapy as deemed appropriate to support [Mother] in reunifying as a family unit. Parents continue regularly [to] attend parenting classes with PARENTS. They are recommended to continue these educational support classes. (Footnote added.) In a report dated January 16, 1997, Kawaji stated that Mother “has been referred to therapy services with [Fu-nai], ACSW, of the CPS Team to address her family of origin issues as well as her Focus of Therapy issues.

If and when deemed appropriate, [Funai] will address [a] couple [of] issues with both parents in therapy as well.” Kawaji also reported that “[b]oth parents are willing to continue to engage in therapy services as recommended” and “[p]arents continue regularly [to] attend parenting classes with PARENTS.” See also Report dated June 19, 1997 (stating that: “Mother’s ‘therapist Ms.

Greene [sic] reported ... that [M]other has been on time or early for her appointments and that them current sessions are about lx/month’ Mother “has regularly attended sessions with Kahi Mohala’s therapy services” [but has failed to consistently engage in psychotherapy services, citing money as her reason]; and “Mother continues to engage in services for the child with the PHN, Waianae Coast Comprehensive Center, and other recommended service providers to monitor and assess the child’s development and progress”).

On cross-examination, Kawaji stated that she had referred Mother to Funai for therapy related to Mother’s sex abuse issues.

Ka-waji admitted, however, that she had never “seope[d] out [Funai’s] resume” and didn’t know that Funai’s “focus has been with children not .... necessarily with adults” and that Funai’s “previous experience has been as administrator rather than as the—as a [sic] actual therapist[.]” When questioned whether she was aware that most of Funai’s therapy sessions with Mother were aimed at identifying “who [Mother] is and what she wants to do if she didn’t have her children rather than dealing with anything about sexual abuse or that type of thing,” Kawaji testified that she didn’t know “the specific nature of—of the actual therapy sessions.” Kawaji agreed that Funai had “moved on to another agency” in May but claimed to not know whether Funai’s preoccupation with transitioning to her new job had made it difficult for Mother to get appointments with her. 2.

Funai was the next witness called by DHS. She testified that she first became involved with Mother in January 1997, when she began therapy sessions with Mother on “goals for herself, goals for her children, situations that would interfere with her abilities to reach goals.” For example, they addressed Mother’s inconsistency in attending therapy sessions, her excuses for not attending sessions, her failure to make appointments, and the length of time it took Mother to get motivated to achieve goals.

Therapy sessions were not focused on delving into Mother’s history as a sexual abuse victim because that subject was being addressed by Green.

Instead, therapy discussions would delve into what goals Mother had and what she would do if she “didn’t have the children.” According to Funai, Mother’s “idea was basically, ‘Well, geez, I can’t see myself without the kids because, you know, they’re my primary objective to have the kids and take care of them.’ ” In response to questions about Mother’s ability to be “protective” of Jane, Funai stated: I think she sees herself as being protective but protective only to, you know, in a way that it’s kind of constricting. For—and let me give an example of what I mean by that.

When [Oldest Daughter] came home [Mother] realized' she needed to supervise [Oldest Daughter]. And so what she would do was be with her twenty-four hours making sure that she was always there[.] And [Oldest Daughter] was ... you know, sixteen going on seventeen, ... an adolescent who, you know, needs, you know, some supervision. I mean, maybe a lot of supervision but also not constantly hovered over. I mean—and that’s not protection, you know. So, in that sense a lot of times she felt that she was protecting her but maybe not the most appropriate way of protecting.

Funai said that it was difficult for Mother to come to Funai’s office because “most often [Mother] would leave tearful because we would deal with issues about her, her behavior, her past, what she would want.” When asked whether she had formed an opinion as to whether Mother could provide a safe home for Jane, Funai testified: I believe that as much as [Mother] loves her children I think the every day responsibilities and the lack of follow through really prohibits her from being able to meet the needs of her children in terms of consistency, nurturing, you know, stability.

On cross-examination, Funai agreed with Mother’s counsel that Mother was a “very caring person, caring to help others ... who loves her kids.” When asked whether the fact that Mother would have to meet the needs of only Jane, rather than all of her children, would make a difference in her ability to provide more attention to Jane, Funai said it would “depend upon [Jane], what her needs are, where she’s at in her development.” However, Funai still had concerns because [a] child needs consistency. They need stability. They need nurturing, you know. In order to develop, to be, you know, a pretty grounded individual.

When I say I have concerns it relates to the fact of [Mother’s] ability to be consistent, okay? She starts off very enthusiastically and somewhere down the road she gets side tracked, you know. Whether it be in other relationships, in other situations and because she’s so kind and caring she takes in everybody into her life— ... I think it would be really difficult for her to change that aspect of her personality. And then just focus on [Jane] ... [and] what her needs are.

In response to further questioning, Funai reiterated that during the last few months of her therapy practice, Mother had been pretty consistent in keeping her appointments with Funai and was coming in two to three times a week. With respect to Mother’s inconsistency in keeping her appointments prior to that time, Funai agreed that she had no reason to question Mother’s explanations (no money for gas, car trouble, or illness of her children or herself) for missing appointments. In fact, on one occasion, Mother kept her appointment when she was obviously sick and Funai had to tell her to go home.

Funai also conceded that Mother had a pretty full plate, trying to do all that was required of her under the service plans. Indeed, because Funai did not want Mother to get “overwhelmed” by going to all the appointments she was required to keep, Funai tried to accommodate Mother by scheduling appointments on the same day as Mother’s appointments with other therapists or service programs in the same area, so that Mother would not have to go to Honolulu from Wai'anae and back several times during the same day.

Funai also agreed that after she left for a new job in May 1998 and therefore had to terminate her therapy services with Mother, she referred Mother back to Kawaji “to see what [Kawaji] wanted to do.” 3. Gayle Kim (Kim), a nurse who had been providing public health services to Mother since 1992, was DHS’s next witness. Kim testified about her home visits to Mother’s home, as well as the first foster home that Jane had been placed in, and also discussed Jane’s development. She testified that in Jane’s first foster home, Jane was “having a lot of behavior problems.

She would end up having tantrums[,] ... for long periods of time, thirty minutes which seemed pretty extreme.” Kim testified that during her visits to Mother’s home, she observed Jane having a temper tantrum “[m]aybe once or twice” when Jane was told not to do something. Mother’s response was to “try to hold [Jane] really tight and tell [Jane] firmly, ‘No’ you know, but not, you know, not too much extremes in terms of her tantruming during the visits.” When asked if she had an opinion as to Mother’s ability to provide for Jane, Kim testified: Yeah, I could see that she could provide physically for [Jane].

That I think she was dressed well a lot of time [sic] when I would make visits, a lot of material things were provided for her, toys and dresses, shoes, things like that. She appeared to be fed and she would generally take her into the doctors whenever she was ill. Except for the two year old physical she was pretty much on time with the physicals. But I think in looking back there were times when I was—I wasn’t too sure in terms of the nurturing part of the relationship, the emotional needs of the child, to be able to respond to her and to nurture her.

When she was an infant she was very affectionate with [the] baby but I guess as the baby became more active, you know, it was more a matter of containing her than—than, you know, responding to her and responding to her needs emotionally. On cross-examination, Kim testified that in her experience with Mother, there was no indication that Mother was abusing Jane. She had also not seen any neglect of Jane by Mother.

Kim also agreed that she “really [didn’t] have a concern that [Mother would] be able to provide a safe home.” Her concern was more that Mother “didn’t seem to be able to nurture [Jane] as much as [Kim felt] might be appropriate” or “see when there were—there may have been problems within ... of her behavior as well as problems with her other children as they were growing up.” Kim admitted, however, that with the assistance of people like herself, who could “sort of key [Mother] in to [developmental] problems” that Jane might be experiencing and provide parenting instructions and education, Mother’s deficits in this area could be addressed.

Finally, Kim testified that Mother “loves her child.” 4. Laura Chun (Chun), an outreach worker for Catholic Charities, testified that she first began working with Mother, Father, and Mother’s family in August 1995. Chun provided weekly supervision for Mother and Father during their supervised visits with Jane and also provided transportation for the visits. Chun testified that as Jane grew older, Jane had frequent tantrums that were, to a degree, severe.

Chun said she had concerns about the way Mother dealt with the tantrums because Mother had a “more laid back parenting style and [was] not as pro-active as she could have been” in dealing with Jane.

Chun confirmed that during the visits, which were for one hour a week, she had never seen “any outward signs of physical abuse or neglect” or “any suspicious bruises or markings. [Jane] always came to the visits clean and clothed.” Additionally, Chun testified, her observation was that Mother “was affectionate ... and she seemed to eai’e about [Jane].” There was also bonding between Mother and Jane, and Mother seemed “capable of providing for the basic physical needs of [Jane].” Chun’s concern related more to whether Mother could maintain a structured enough environment to provide the needed consistency and discipline to control Jane’s behavior.

Also, she had concerns about whether Mother could take Jane to her appointments on a regular basis. Chun believed that Mother could have been a “better parent” and was concerned because during the time Chun had worked with Mother, “there was very little progress” in that Jane “still continued to have the same behavior problems.” 5. Jane’s GAL since November 1997 was also put on the stand and questioned by the parties. He testified that he was not concerned about Mother “re-abus[ing] or re-negleet[ing]” Jane.

Instead, he was concerned that Mother “didn’t comply with some of the requirements of the service plan ... and make due progress.” The GAL confirmed that Mother had voluntarily sought treatment with Green for sexual abuse issues, that Mother and Jane appeared to be bonded and communicating with each other, and that the home environment appeared to be clean and well taken care of.

The GAL also confirmed that outreach services by Kim were terminated in September 1997, services by Chun ended in March 1998, and that although Funai had known since February 1998 that she would be leaving for a new job in May 1998, no arrangements were made by DHS to obtain a replacement therapist for Mother. 6. Mother testified that the day after she had given birth to Jane, a CPS worker came to the hospital and had police “book” Jane and take her away.

Mother was told that DHS “got an anonymous report that some kind of harm was gonna happen to [her] baby.” Mother pointed out that no' one had bothered to go to her house or to Father’s house to investigate the anonymous report; if they had, they would have seen that her home, not Father’s home, was prepai-ed for the baby. Mother testified that Jane was returned to her on July 27, 1995, but as a result of an incident that occurred at the CPS office, Jane was again removed from Mother on August 14, 1995. Mother explained that she had gone to the CPS office for a supervised visit so that Father could see Jane.

Frank, a CPS aide, was in the room, as well as Father. Mother went to inquire what was taking so long to get the visit underway since she had not heard from anybody, then “went back in the room and ... was breast feeding Jane right outside by the door.” According to Mother, there was [sic] people walking back and forth. The security guard from in there told us that we can go in the room. I wasn’t think—honest, I wasn’t thinking anything wrong. I did that mistake by going in the room.

So, Father was sitting like across and I was sitting by the door and then Frank came in by the door ‘cause I was talking with him ‘cause I was sitting by the door breast feeding my baby. Mother testified that she also talked to Penny, another DHS aide who was present, and was never told by either Frank or Penny that she was doing anything wrong. When it was determined that the aide who was supposed to supervise the visit was not showing up, Father left the premises and never had his visit with Jane.

It was only after Father left that Penny told Mother that “[they were] not supposed to be in the same room together.” Two days later, DHS came to Mother’s home and “called the cops,” who had Jane removed. Mother testified that Jane remained in foster custody until December 27, 1995 and then “[t]he Judge gave me a chance with her.” Mother described her hectic

schedule in carrying out the court-ordered service plans involving Sons 1, 2, and 3, Daughter 2, and Jane. She had to “[s]ee [Funai]. See the therapist at Kahe [sic] Mohala and [take] the baby to the doctor and take it to PCDC.” Mother was also attending school because it was a mandatory requirement for collecting welfare benefits. Additionally, she had visits with “all the kids” on Mondays, and with Son 1 and Jane on Fridays. Her visits with Green were weekly initially, then twice a month, and then once a month.

The sessions with Green focused on dealing with sex abuse issues involving Mother’s past history, such as “what’s going on with the CPS and [Mother’s] children” and “what happened between [Mother] and [Grandfather], the sex abuse[,] what happened to my daughter and—and my boy’s father, the twins, and [Son 1].” According to Mother, the sessions with Funai focused on getting Mother to think about who she was, what she desired, and what she wanted to make of herself.

Mother stated that because she “ha[d] kids and ... was going to school at the same time and ... trying to make ... something of [her]self[,]” which is why she “was going to school to get [her] [General Educational Development (GED) certificate] and trying to look for work[,]” she had a hard time explaining to Funai that she could not, as Funai requested, “put [her] kids on the side[,][t]hink of it like [she] didn’t have any kids ... [a]nd concentrate on ... [her]self.” Mother testified that Jane was taken away from her again on September 15,1997.

That morning, according to Mother, she had taken Jane for a “[WIC] appointment” to get Jane’s height, weight, and growth development monitored. She also took Son 1 to see Dr. Pervis and to pick up some “Ritalin,” a medication that Son 1 took for his attention deficit disorder. Upon returning home, Mother left Jane with Mother’s brother; Ann, who was “a girlfriend”; and Rose, a neighbor. Mother then dropped Son 1 off at his school and went to her own school to take her final GED test.

During the test, Mother got an emergency phone call from Ann, who was scared, informing Mother that people were banging on the door. Mother said she instructed Ann not to let anyone in the house, then went straight home. By the time she arrived home, Jane had already been taken away to the Waianae Comprehensive Center. Mother testified that she always made sure that Jane was fed, well-dressed, and clean, and gave Jane a lot of hugs and kisses.

She also played with Jane, had toys for her, and even had a pamphlet from the PHN to help her work with Jane with certain educational toys; e.g., stacking blocks of the same color. Mother also nurtured Jane by reading books to her, and helping her to write and count numbers. Mother observed that after Jane was taken into foster custody by DHS in September 1997, Jane began to exhibit changes in her behavior. Of special concern and embarrassment to Mother was Jane’s behavior when Jane had to leave after a visitation with Mother.

Jane “would kick her feet up in the air and start screaming,” cry and bang her head against the ear seat, tell Mother “she wants to come home,” not let go of Mother’s hand, hold on to the door, and shut the door so that she could go home with Mother. The DHS aide would bring candies to bribe Jane and calm her down. Mother testified that she had been seeing Jane twice a week, but the month after her last court hearing, she missed a Friday visit when she was out looking for a job and filling out job applications because Funai had told her she should.

By the time she called DHS to confirm her Friday visit, it “was too late to call, [so] my visit[ ][was] already cancelled.” Thereafter, Mother testified, her Friday visits were canceled, and Kawaji informed her that “it was very important that [she] go to [her] Monday visits with [Jane].” With regard to her required therapy services, Mother testified that she was given two weeks’ notice by Funai, with whom she had been meeting about three or four times every month, that Funai was leaving for a new job. Mother was never told whether therapy would continue with someone else.

By that time, all other therapy services had “gone by the way side [sic]” and the only therapist Mother was seeing was Green. Concerning her relationship with Father, Mother testified that she had broken up with him permanently and only called him so that he could talk to Jane on the telephone. She broke up with him because she realized that as long as she was with him, she would not be able to have the kids. On cross-examination, Mother admitted that she had been diagnosed with a dependent personality disorder.

However, she testified that she was only eighteen years old, a teenager, when she had taken the test upon which the diagnosis was made; she is now an adult. Mother testified that she had never worked or really had a job because she was taking care of her children. She also could not look for a job because a job would interfere with performing the services she was required to under the service plan. Regarding her ability to protect Jane, Mother testified that she had never left Jane alone with Father and that Jane was “already afraid of [Father] because she hasn’t been around men.” 7.

Father was the final witness at the hearing. He testified that he had never seen Mother hit or abuse her kids or be mean to them, and she always fed them. He had also never been alone with Jane. Father testified that Mother should get Jane because “I know she’s a good mother and I know she no abuse the kids and I know she don’t hit her kids and I know she time out and stuff like that. I never seen her mean to her kids.” Additionally, Mother never left the children unsupervised and never took drugs. 8.

In addition to the foregoing testimony, Mother offered, and the family court admitted into evidence, a letter from attorney Arlene J. Piper (Piper), the GAL for Mother’s other children in the past as well as present CPS cases, with the qualification that Piper had not been part of Jane’s case and had not had access to the files and records concerning Jane. The crux of Piper’s letter was as follows: In both my capacity as GAL and personally, I have never observed [Mother] mistreat or abuse her children. She has always been a loving mother who has tried her best to take care of her children.

I believe she has been thwarted in her efforts to comply with her Service Plan. It seems whenever she substantially complied with the requirements, DHS added more requirements or changed the demands in a manner that appeared geared to failure, as the specifics did not take into consideration [Mother’s] background or situation. This whole case leaves me heartbroken. I think it is a sad commentary that the State could not use its resources to help this family stay together.

For [Mother] to lose her only remaining child would be very unfortunate, as she does love all her children, and has fought so hard to keep this last child. I know my present ward, [Oldest Daughter], will be- devastated to lose her one remaining sibling.

K.The Award of Permanent Custody Over Jane to DHS On July 31, 1998, the family court entered the Permanent Custody Order that: (1) revoked the prior award of foster custody over Jane to DHS; (2) divested Mother and Father of their parental rights in Jane; (3) appointed the Director of DHS as permanent custodian of Jane, with authority to delegate his/her responsibilities and duties to a professional member of the DHS staff; (4) awarded the Director of DHS “each of the parental and custodial duties and rights as are set forth in HRS § 587-2, ‘Permanent Custody’ and are stated in the Letters of Permanent Custody,” a copy of which was filed concurrently with the family court’s order; (5) excluded Mother and Father from participating in adoption or other subsequent proceedings involving Jane; and (6) ordered Mother and Father to appear at a permanent plan review hearing on February 5,1999.

The Letters Awarding Permanent Custody to DHS vested in DHS, until Jane “reaches the age of eighteen or is ... adopted,” the duties and rights of a legal custodian and family member, including the authority “[t]o provide consent to [Jane’s] adoption, change of name pursuant to HRS § 574-5, or to marriage with prior [c]ourt approval[.]” L. The Denial of Mother’s Motion for Reconsideration and Mother’s Appeal On August 18, 1998, Mother filed a motion for reconsideration of the Permanent Custody Order. The family court summarily denied Mother’s motion on September 16, 1998.

This timely appeal by Mother followed on October 13,1998. M. The Family Court’s Findings of Fact and Conclusions of Law On November 10, 1998, Findings of Fact and Conclusions of Law were filed by the family court. The family court concluded, in relevant part, as follows: 3. [Mother] ... [is] not presently willing and able to provide [Jane] with a safe family home, even with the assistance of a service plan. 4. It is not reasonably foreseeable that [Mother] ... will become willing and able to provide [Jane] with a safe family home, even with the assistance of a service plan, within a reasonable period of time. 5.

The permanent plan dated October 15, 1997 is in the best interests of [Jane].

The findings of fact that are relevant to this appeal by Mother and upon which the family court based its foregoing conclusions include the following: THE CHILD 32. [Jane] was first placed in foster care on June 21,1995. 33. [Jane] has been residing in the current foster home since December 1997. 34. [Jane] is a “special needs” child as demonstrated by the following factors: she often displays chaotic behavior when she is at visits; she has frequent, severe “tantrums”; she has borderline delays in development, and febrile seizures; she showed improvement in her speech and behavior after being placed out of family home. 35.

The professionals involved in [Jane’s] life have expressed grave concerns with the protracted nature of these proceedings and the negative psychological impact it is having on [Jane’s] development. 36. [Jane] displays the same behavioral problems and difficulties that her older siblings did. The siblings have all gone on to develop further behavioral disorders such as: Attention Deficit Hyperactivity Disorder, toileting and hygiene problems, attachment disorder, defiant behavior, and impulsivity. [Jane’s] future development would likely mimic the patterns and needs of the other children. 37.

The behaviors that [Jane] exhibits and likely may develop in the future can be managed through structure. 38. Mother and Father cannot provide the structure or consistency needed to manage [Jane’s] problems. MOTHER 42. Mother was physically and sexually abused by [Grandfather], ... from the age of ten until she was fourteen. 43. At the age of 15, Mother gave birth to her oldest child, [Oldest Daughter,] on October 30, 1981. Mother was involved in a relationship with [Oldest Daughter’s] father ... for about two years. 44. [Oldest Daughter] was sexually abused by [Grandfather] and [Legal Father]. 45.

Mother met [Legal Father] in 1985, and they married in 1986. [Legal Father] was an alcoholic and physically abused Mother prior to and during their marriage. 46. [Legal Father] is the father of [Son 1] and the twins, [Sons 2 and 3]. [Legal Father] physically abused all of the children, in addition to Mother. [Legal Father] also sexually abused [Oldest Daughter], for which he was convicted of criminal charges and deported to Western Samoa. [Legal Father] was not allowed to return to the United States until 1996, and has had no contact with the children since being deported. 47.

Mother has been in an abusive relationship with Father since sometime in 1993. 48. Although Mother finally has acknowledged the issues regarding her own physical and sexual abuse, she continues to have limited insight as to how those issues affect her judgment and ability to provide for her childrens’ [sic] needs. 49. Mother still does not understand how the abusive relationship between herself and her partners, as well as the abuse her partners have perpetrated against all of their children and other family members, has a detrimental effect on [Jane’s] physical and psychological well-being. 50.

Throughout this case, Mother has exhibited a pattern of alternating between insight and denial, compliance and noncompliance, participation and non-participation, improvement and regression, and insight and lack of insight into [Jane’s] needs. 51. Mother has no insight into [Jane’s] ordinary and special needs. Mother’s parenting style is passive, and she tends to confine Jane to a play pen, crib, or high chair to “manage” her, rather than letting her be free to explore while monitoring her safety.

Mother displays a lack of understanding and consistency in providing structure, guidance and discipline to [Jane], and continues to make poor choices regarding child care. 52. Mother frequently cancelled visits with [Jane] and her siblings due to illness, other appointments, or other personal obligations. 53. Mother was also inconsistent in attending therapy sessions, which impeded her ability to reach her goals. 54. Mother has never been employed, and has no training or education which would enable her to secure employment. 55. In a psychological evaluation administered by [Dr.

Loo], Mother was diagnosed as suffering from Dependent Personality Disorder. This diagnosis negatively impacts Mother’s ability to provide a safe family home for [Jane] because of difficulty in making independent decisions, tending to choose partners that are high risk, and exercising poor judgment. 56. Mother failed to follow directions that DHS felt were necessary to the well-being of all her children, despite repeated and clear instruction. 57. Mother agreed to discontinue her relationship with [Father] in order to have her children return to her.

Despite her purported willingness to do so, Mother maintained a relationship with [Father], and fails to understand the detrimental effect on [Jane’s] physical and psychological well-being. 58. Mother appears to have agreed to participate in services because she felt she was required to by the [c]ourt to effect reunification with her children, and not because she agreed with or understood the need for services and the benefits that would derive from them. Mother still has not recognized, acknowledged, or apologized for the harm to [Jane] or her siblings. 59.

Because Mother does not recognize or understand potential harm to [Jane], Mother is unable to be protective and will continue putting [Jane] at risk of threatened harm. 60. Mother and Father have not been open and forthright with the various service providers in this case. 61. Mother has not been honest regarding child care and the status of her living arrangements or personal relationships. 62. Mother and Father have failed to follow court orders despite having them explained in writing, and at court and by the social workers and various service providers.

They continue to place blame on others for their own actions. 63. Mother has failed to show progress in any of the services she was ordered to attend, despite continual participation in those services for over 13 years. Mother has made only limited progress in therapy addressing her attachment, relationships, and her own abuse issues. While Mother is able to repeat and verbalize concepts she has learned in therapy and counseling, she appears unable to internalize those concepts and generalize them to apply them in practice. 64. The same problems still exist now that were present when the case was first opened.

Mother had, and continues to have, limited ability and insight. Mother would always continue to require supervision and monitoring and it is unlikely Mother can or ever will benefit from further services in a meaningful way. 65. Mother was given every reasonable opportunity to effect positive changes to provide a safe family home and to reunify with [Jane]. 66.

Mother is not presently willing and able to provide [Jane] with a safe family home, even with the assistance of a service plan because her foregoing problems continue to exist and she has refused, frustrated, and failed to benefit from the services which have been provided to her over the last 13 years. 67.

It is not reasonably foreseeable that Mother will become willing and able to provide [Jane] with a safe family home, even with the assistance of a service plan because even if Mother were to suddenly change her long standing pattern of behavior, there is no likelihood that she would sufficiently resolve her problems at an identifiable point in the future. (Footnotes added.) THE LEGAL FRAMEWORK FOR INVOLUNTARILY TERMINATING PARENTAL RIGHTS A.

United States Supreme Court Case Law The United States Supreme Court has characterized the “rights to conceive and to raise one’s children” as “essential, ... basic civil rights of man, ... and rights far more precious than property rights.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (brackets, citations, ellipsis, and quotation marks omitted).

According to the Court, a natural “parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference, and absent a powerful countervailing interest, protection.’ ” Lassiter v. Department of Social Servs. of Durham County, N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (quoting Stanley, 405 U.S. at 651, 92 S.Ct. 1208). When a state initiates a termination of parental rights proceeding, it seeks “not simply to infringe upon that interest, but to end it.

If the State prevails, it will have worked a unique kind of deprivation. A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore a commanding one.” Lassiter, 452 U.S. at 27, 101 S.Ct. 2153. In' recognition of the importance of this parental interest, the Supreme Court announced in Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), that “[b]efore a State may sever complete

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