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Hawaii high court sides with Kona mom who lost custody of son

By Star-Advertiser staff & Associated Press

LAST UPDATED: 01:22 a.m. HST, Jan 07, 2014

The Hawaii Supreme Court declared Monday that parents who can't afford a lawyer have a state constitutional right to a court-appointed attorney when the state seeks to terminate parental rights over their children.

In the unanimous decision, Associate Justice Simeon Acoba wrote that the failure of a Big Island Family Court judge to appoint a lawyer for a woman nearly 19 months after the state requested temporary foster custody over her son was an "abuse of discretion."

The justices went on to say that parents have a right to a lawyer under the state Constitution's due process clause.

From now on, judges must appoint lawyers for indigent parents once the Department of Human Services asks for foster custody over a child, the high court said in the 43-page opinion.

The case involved confidential Big Island Family Court custody hearings over the son, identified only as T.M.

The ruling overturns a decision to terminate parental rights of a Kona mom who was 15 when she gave birth in 2009. Six months after the boy was born, the mother went to a domestic violence shelter because of a reported incident between her and the boy's father.

Still a minor herself, the mother and her baby went into temporary foster care. Last year, Family Court determined the mother, who battled drug abuse and mental health issues, couldn't care for her son, according to an appeals court ruling.

Her rights were violated because Family Court didn't appoint a lawyer to represent her until the boy had been in foster care for nearly two years, her Maui attorney, Benjamin Lowenthal, argued at a hearing before the high court last month.

"The failure to immediately appoint counsel for petitioner even after it became apparent that (Department of Human Services) would seek to terminate petitioner's parental rights left petitioner without the necessary assistance to prepare for the March 2, 2012, termination hearing," the Supreme Court opinion says. "Petitioner was without legal guidance and did not have an advocate to represent her in negotiations with DHS."

The American Civil Liberties Union of Hawaii and other public service law groups filed a friend-of-the-court brief in the case, saying they want a uniform Hawaii policy guaranteeing legal counsel for all indigent parents who face losing custody of children, regardless of their age, instead of on a case-by-case basis.

Courts in 43 states and the District of Columbia automatically provide court-appointed attorneys in abuse and neglect cases, according to the ACLU.

"We direct that upon the filing date of this opinion, trial courts must appoint counsel for indigent parents upon the granting of a petition for DHS for temporary foster custody of their children," the Supreme Court's opinion says.

The high court noted that the "right to counsel" is essential to fairness in the criminal court system, and an attorney is also necessary for a "fair procedure" in parental termination proceedings.

The ruling vacates the mother's termination of parental rights and sends the case back to Family Court for a new hearing.

A spokeswoman for the state attorney general's office said a statement on the decision was being prepared.

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Bdpapa wrote:
The decision is fair for the parents to have representation but I hope they leave the child where he/she is until the parents prove they are reliable.
on January 6,2014 | 02:23PM
That is what the courts due process is to determine.
on January 6,2014 | 02:57PM
false wrote:
In the mean time the baby is two years older and the mother is two years older. Hopefully there will be justice for these two. Heartbreaking in any case.
on January 6,2014 | 03:31PM
kaiakea wrote:
Sounds like parental rights needed to be terminated, but due process still has to be observed.
on January 6,2014 | 03:28PM
Sandybeach wrote:
Good call. Lower courts make to many errors. State Supreme Court is clear on many issues. I hope that Judge Ahn got the message in the closed the judicial files to the public case. The courts are the third branch of our government. They must and should be responsive to the State Constitution and the Laws. Too many lower judge run their own circus. The Supreme Court has lead a consistent and unequivocal path. Follow the Supreme Court and stop getting overturned.
on January 6,2014 | 03:57PM
Sandybeach wrote:
Due process must always be followed. No room for error on that matter.
on January 6,2014 | 03:58PM
Anonymous wrote:
and the taxpayers pickup the ever growing tab.....................?
on January 6,2014 | 04:11PM
RetiredWorking wrote:
Anonymous, of course the taxpayers pick up the tab. Who else pays for the Public Defender? If it's their constitutional right, then taxpayers foot the bill. I'm not losing sleep over paying this "ever growing tab".
on January 6,2014 | 10:24PM
saywhatyouthink wrote:
The nerve of DHS to terminate the rights of a 15 year old mother. They already had control of the situation since she was a minor in foster care herself. Sounds like they really wronged her , terminating someone's parental rights is serious business. These DHS people should know better, not railroad her because she's a minor.they likely opened the state up to damages should she decide to sue. No doubt that's her next step.
on January 6,2014 | 05:30PM
RetiredWorking wrote:
It would be nice to have access to the case record, so we could speculate more intelligently. Yes, maybe this 15yo with substance abuse and mental issues was an excellent mother. Shame on DHS.
on January 6,2014 | 10:27PM
tiwtsfm wrote:
If the mother was in foster care then I believe that she would be assigned a Guardian ad Litem and so would her child.. Thus they both would have has lawyers. Maybe this article does not tell the whole story.
on January 7,2014 | 04:49AM
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