In Re Rgb

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IN THE SUPREME COURT OF THE STATE OF HAWAfI

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In the Interest of RGB, A Minor

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NO. 28582 ==

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CERTIORARI TO THE INTERMEDIATE COURT OF APPE: iv

(FC-S NO. 01-O063) - F:

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APR1L 1, 2010 l,, :r §§

99

MOON, C.J., NAKAYAMA, AND RECKTENWALD, JJ.§; §§

AND ACOBA, J., DISSENTING, WITH WHOM DUFFY, J., JOINS

OPINION OF THE COURT BY RECKTENWALD¢ J.

In this appeal, we consider whether the family court

abused its discretion in denying Mother's motion for relief from

an order terminating Mother's parental rights. The motion

alleged that Mother received ineffective assistance of counsel in

the proceeding that resulted in the termination order, as well as

in her direct appeal from that order,

was born in July of 1999. RGB was

Mother's child, RGB,

after she was

taken into protective custody on March 30, 200l,

found dirty and without a diaper or underclothing in the custody

of Mother's ex-boyfriend, who had a history of substance abuse

and had been diagnosed with chronic paranoid schizophrenia. RGB

was later returned to Mother, but was placed in foster custody in

and has remained with the same foster family since

Apri1, 2002,

then. Mother and RGB were subsequently involved in a series of

interactions with the Department of Human Services (DHS) and

(family

proceedings before the Family Court for the Third Circuit

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court). Mother was allowed to visit with RGB, but these visits

had increasingly negative effects on RGB and were discontinued by

the family court in 2004 after it concluded that “the visits were

causing injury to [RGB’s] psychological capacity as evidenced by

a substantial impairment in [RGB's] ability to function.”

After conducting a six-day permanency hearing, the

family court issued its Findings of Fact, Conclusions of Law and

Order terminating Mother's parental rights (Termination Order) on

March l1, 2005.l On February 6, 2007, Mother filed a motion for

i“1) New Trial, and/or 2) To Reconsider and/or Amend Judgment

and/or All Previous Orders, and/or 3) For Release of All Evidence

or Files in Case, and/or 4) For Dismissal,” alleging that her

prior counsel was ineffective. The family court denied Mother's

motion on May 8, 2007.

Mother seeks review of the May 21, 2009 judgment of the

Intermediate Court of Appeals (ICA), entered pursuant to its

April 9, 2009 Summary Disposition Order (SDO), affirming the

family court’s order denying Mother's motion. In her application

for a writ of certiorari (application), Mother raises the

following questions:

A. whether The Intermediate Court Of Appeals (“ICA”)

“Borrowing” Of Criminal Matters Analogy To Apply To

Family Court Claims Of Ineffective Counsel Is

Authorized By Law And Meets Constitutional Standards?

B. whether The ICA Upholding Of The Tria1 Court's

Refusal To Release “Confidential” Records That

Appellate's [sic] Counsel Could Not Examine But At The

1 The Honorable Ben H. Gaddis presided.

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Same Time Requiring Counsel To “Identify Any Prejudice

Stemming From This Limitation” Meets Fair Disclosure

Standards?

We resolve Mother's appeal as follows. First, we

consider the basis of Mother's ineffective assistance of counsel

claim. Since we conclude that the family court properly

determined that Mother had a right to counsel under the United

States Constitution in the circumstances of this Case, we do not

reach the question of whether the HawaFi Constitution provides

indigent parents a right to counsel in all termination

proceedings. Second, we conclude that a Hawafi Family Court

Rules (HFCR) Rule 60(b)(6) motion was an appropriate method for

raising an ineffective assistance of counsel claim in the

circumstances of this case.

Third, we hold that the family court did not abuse its

discretion in denying Mother's motion, particularly in view of

the negative impacts on RGB of the delay in resolving her

custodial status. Thus, we respectfully disagree with the

dissenting opinion's view that such impacts should not be

considered in assessing that motion. Dissenting Opinion at 81-

82. The motion was filed nearly two years after the family

court's March 1l, 2005 order terminating Mother's parental

rights, and contained no allegations whatsoever about what errors

had occurred in the family court proceedings leading up to the

entry of the Termination Order. By the time the motion was

filed, RGB had been living with the same foster family for nearly

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five years, and wanted to be adopted by that family. However,

the adoption had been delayed pending the resolution of these

proceedings. As set forth in a January 2006 report by DHS to the

family court:

[RGB’s foster parents] want to adopt [RGB] and have

been ready to proceed with the adoption process ever

since biological mother's parental rights were

terminated in March 2005. However, biological

Mother's pending appeal to the court . . . has

prevented the DHS and [RGB’s foster parents] from

proceeding with the adoption. Hence, [foster parents]

and [RGB] and the entire family are disappointed. Per

[foster mother], [RGB] continually wonders and asks

“when will she be ad0pted”.

Given those circumstancesy and given Mother's failure

in the Rule 60(b)(6) motion to identify any potentially

meritorious issues that would have been raised but for the

ineffectiveness of her counsel, the family court did not abuse

its discretion when it denied the motion.

Finally, we hold that the family court did not abuse

its discretion in precluding Mother from having access to those

records in this case that were generated after September 28,

2006, i.e., more than a year after her parental rights were

terminated, while allowing her to have access to records created

prior to that date for purposes of appeal.

Accordingly, we affirm the judgment of the ICA.

I. Background

A. Termination of Parental Rights

DHS first became involved with Mother and RGB on

March 30, 200l, when RGB was taken into protective custody. On

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April 6, 200l, the family court awarded DHS temporary foster

custody of RGB. On June l5, 200l, RGB was returned to Mother's

care under family supervision. On April 4, 2002, the family

court awarded foster custody to DHS. Mother was allowed

supervised visitation. On April 1, 2004, the family court

suspended visitation between Mother and RGB indefinitely.

A permanent plan hearing was held on August 23,

August 30, September 3, September 20, September 27 and

December l3, 2O04.2 On March 1l, 2005, the family court issued

its Termination Order, which included the following relevant

Findings of Fact (FsOF):3

3. Mother grew up on the mainland in difficult

circumstances. She was hospitalized on at least four

different occasions for psychiatric conditions.

Mother abused drugs and substances. She was in a

series of unstable, sometimes violent relationships

with men. `

4. Mother had another child who was removed

from her care by the State of California. Over her

objection, the parental rights of Mother to her older

daughter were terminated, and the child was

permanently placed with Mother's sister.

0.' while living in the bay area of California,

Mother again became pregnant. Fearful that California

2 No transcripts of this or any other proceeding in this case were

included in the record on appeal.

3 Mother did not dispute the family court's FsOF in her February 6,

2007 motion, in her appeal to the ICA, or in her application to this court,

and we therefore rely on the family court's FsOF for the purposes this appeal.

Cf. Robert's Haw. Sch. Bus, Inc. v. Laupahoehoe Transp. Co., 91 HawaFi 224,

239, 982 P.2d 853, 868 (1999) (holding that “[f]indings of fact that are

unchallenged on appeal are the operative facts of a case”), superseded by

statute on other grounds as recognized in Haw. Med. Ass'n v. Haw. Med. Serv.

Ass'n, 113 Hawafi 77, 107, 143 P.3d 1179, 1209 (2006).

Moreover, we note that the dissent relies in part on the family

court's FsOF regarding Mother's mental health condition to dispute the

propriety of the family court's decision to discharge Mother's counsel,

Dissenting Opinion at 78, and also relies on DHS's Answering Brief to the ICA,

which draws significantly from the FsOF, for its own recitation of the facts,

Dissenting Opinion at 4-7.

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authorities would remove her second child, she moved

to Hawafi when eight months pregnant with [RGB].

8. Mother encountered many difficulties living

in HawaFi after the birth of [RGB]. She did not

apply for public assistance because she was fearful

that State authorities might remove [RGB]. She had

very little money. At times she and [RGB] were

homeless.

9. On March 30, 200l, [RGB] was taken into

police protective custody after she was found in the

care of [Mother's ex-boyfriend]. At the time that she

was placed in police custody, she was dirty and did

not have on a diaper or underclothing.

lO. [Mother's ex-boyfriend] and Mother had been

in a relationship for many years. [Mother's ex-

boyfriend] had a history of substance abuse and a

mental health diagnosis of chronic paranoid

schizophrenia with acute exacerbation. He had been

acquitted of two sexual assault offenses due to

incapacity.

1l. A temporary foster custody hearing was

conducted. Mother applied for and received the

services of court-appointed attorney, Cynthia Linet.

l2. On April 6, 200l, the Family Court awarded

the Department of Human Services (“DHS”), temporary

foster custody of [RGB] on the basis that she was

subject to imminent harm due to Mother's past history

of mental health problems and her current relationship

with [Mother's ex-boyfriend].

l4. On June l5, 200l, . . . the Court returned

[RGB] to [Mother's] care under family supervision.

l5. On November 29, 200l, DHS again petitioned

the Court for foster custody of [RGB]. Mother and

[RGB] had been evicted from the homeless shelter and

had moved to the Rossmond Hotel. Mother was having

difficulty controlling [RGB] and following through

with skills taught by the parenting program that she

attended.

16. The Court . . . continued family

supervision of Mother and [RGB].

l7. Mother's attorney, Ms. Linet, moved to

withdraw as counsel, Mother asked to be allowed to

represent herself. The Court allowed Ms. Linet to

withdraw as Mother's counsel and allowed Mother to

appear pro se.

18. On April 4, 2002, DHS again petitioned for

foster custody of [RGB]. Mother and [RGB] had moved

back to the homeless shelter because the Rossmond

Hotel was closed for renovation. . . . Based on

representations made, the Court awarded foster custody

of [RGB] to DHS and scheduled a contested disposition

hearing to determine whether [RGB] should remain in

foster care.

l9. The Court appointed Alexander W. Thoene,

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Jr.[4] to serve as counsel for Mother. The

disposition hearing was conducted on April 12, l5, and

May l4, 2002. Mother failed to appear for the fourth

day of the disposition hearing on June 17, 2002.

20. The Court defaulted Mother for purposes of

the disposition hearing and found that she suffered

from a mental condition which distorted her perception

of the people that she had been in contact with to the

point that she considered all of them to be conspiring

against her to deprive her of [RGB]. The Court

concluded that this perception of Mother and her

inability to control her emotions led her to have

conflicts with people who had been trying to assist

her. The Court found that Mother was a person of

above-average intelligence and was able to pass parent

education classes. Not withstanding her cognitive

abilities, the Court found that Mother's mental

disorder prevented her from applying the lessons

learned to adequately parent [RGB], and that

consequently, [RGB] was often deprived of clean and

appropriate clothing, did not baths on a regular

basis, and did not have adequate supervision. The

Court determined that this was not a simple matter of

Mother having a different lifestyle, but more a matter

of Mother being incapable of adapting to situations

which were incompatible with her lifestyle and

beliefs, and that this inability to adapt, was a by-

product of her mental disorder, and endangered [RGB]

and rendered Mother incapable of providing a safe home

for [RGB]. The Court concluded that continuation of

[RGB] in Mother's care would result in serious injury

to [RGB], delaying physical, emotional, social, and or

psychological development with long term negative

consequences for [RGB].

22. On July B, 2002, Mother filed a motion to

terminate Alexander W. Thoene, Jr. as her counsel.

She indicated that she would proceed pro se. On

August 8, 2002, the Court granted Mother's request to

proceed pro se, but required Mr. Thoene to serve as

stand-by counsel for Mother to assist her in the

presentation of her case.

24. At first, visits . . . between Mother and

[RGB] went well. [RGB] appeared more loving towards

Mother and did not seem to be resistant to visits.

Mother interacted with [RGB] very appropriately,

25. On September l9, 2002, a . . . visit did

not go well. Mother seemed easily frustrated. When

{RGB] wanted to call her foster mother or preschool

teacher on a play phone, Mother stopped participating

in the play. Mother became emotional and made

inappropriate statements to [RGB] such as, “I'm your

mommy, they want to take you away and make you think

4 Thoene is referred to variously in the record as “Alexander” and

“Alika.” For the purposes of this opinion, we adopt the phrasing reflected in

the family court's FsOF and appointment of counsel, and utilize the name

“Alexander.”

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someone else is your mommy, but I am your mommy.”

[RGB] had to go to the bathroom five times in the last

hour of the visit.

27. In the summer and fall of 2002, [RGB] began

to make statements about a “man in a brown car.”

[RGB] made statements that suggested that the man had

been violent towards Mother. [RGB] also said that the

man in the brown car put a thing in her mouth and she

threw up. Service providers became concerned that

[RGB] may have been sexually abused by a male before

she was placed into foster care.

28, Mother's response to the concern about the

possible sex abuse of [RGB] was to vehemently reject

any possibility that the child had been sexually

abused while in her care. Much later in the case,

Mother disclosed that she had owned a brown car during

the time that she and [RGB] were homeless.

33. During the early part of 2003, Mother's

visits with [RGB] continued. While most visits went

well, more difficulties arose in February. Mother

began to make inappropriate comments to [RGB] during

supervised visits. Comments by Mother included

statements such as, “They are brain washing you” and

“Mommy is looking for a house and soon you can come

homé.” . .

34. The foster mother reported that [RGB]

returned from visits with Mother very upset with

concerns about where she was going to live and whether

she would be moved.

35. Between January and March 2003, [RGB] had

displayed numerous anxious behaviors both in the home

of the foster parents and in therapy. After visits

with Mother were suspended, [RGB's] anxious behaviors

abated.

37. On May 1, 2003, at Mother's request, stand-

by counsel, Alexander W. Thoene, Jr. withdrew and G.

Kay Iopa was appointed as replacement stand-by counsel

for Mother.

38. Throughout this proceeding, Mother has had

difficulties with her attorneys. At times, she has

insisted on proceeding pro se. At other times, she

has requested new counsel or postponements until she

could gather enough funds to hire counsel of her

choice. Mother has proven herself unable to organize

and effectively present her own case. At the same

time, she has often refused to allow her court-

appointed counsel to proceed on her behalf. For this

reason, the Court appointed Mother stand-by counsel.

Mother was allowed to present her own case and

question witnesses to the extent that she was able to

do so, but she was also allowed to rely on stand-by

counsel to present her case when she was not able to

proceed. Stand-by counsel was also available to

assist Mother in the preparation of appropriate

motions and pleadings.

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42. On August 8, 2003, [RGB] had a visit with

Mother at Parent's Inc. This visit seemed to go well,

but the foster mother reported that on the drive home

from the visit, [RGB] asked about what happens to

mommies that hurt their babies. The foster mother

asked how the mommy hurt the baby and [RGB] responded

that the mother took the baby to the man in the brown

car and held her down and the man “hurt me.” [RGB]

told the foster mother that the man said that he was

going to cut her with a knife and was going to put it

in her “tuni” and cut her up. “Tuni” is a word that

[RGB] uses for vagina. [RGB] related that she kicked

the man in his leg and he got really mad and slapped

her and she screamed loud. [RGB] also said that

Mother[] let the man put medicine in her mouth and

that she threw up all over Mother's bed. Concerns

about the statements of the child caused DHS again to

suspend[] visits with Mother.

43. On August 28, 2003, visits between [RGB]

and Mother again resumed . . . .

44. During this period, there were numerous

conflicts between Mother and the supervising agency

54. At a review hearing on January 29, 2004,

the DHS worker reported that Mother continued to make

inappropriate statements to [RGB] about how she was

going to return to Mother. The social worker

indicated that [RGB’s] old fears had returned. .

55. [RGB] and Mother continued to visit twice a

week for one and a half hours per visit under the

supervision of a DHS aide. While the visits seemed to

go well, [RGB] showed troubling signs of distress in

her play sessions with her therapist. Prior to visits

with Mother, [RGB] would cry frantically and vomited

on one occasion.

56. In February 2004, in the evenings, [RGB]

began complaining of a fast heart beat and gasping for

breath. Her pediatrician . . . diagnosed her with

adjustment disorder noting that the stress reaction

was likely caused by the visits that [RGB] had with

Mother.

59. On March 12, 2004, [RGB] asked to leave a

supervised visit early. Mother became very upset and

began to accuse the supervisor of training [RGB] to

make such statements. The visitation supervisor

attempted to terminate the visit, but Mother continued

to escalate emotionally, threatening to sue the social

worker and saying that she would talk to the Governor.

[RGB] reacted by trying to reassure and placate both

Mother and the visitation supervisor. [RGB] cried as

the supervisor carried her back to the State Building

where [RGB] was placed in an office. Mother followed

[RGB] and supervisor back to the office where she

created a scene, shouting and demanding to see [RGB].

After Mother finally left, [RGB] asked the visitation

supervisor whether it was safe to leave.

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57.[5] On March l8, 2004, the Court again

suspended visits between Mother and {RGB] pending

another court hearing,

59. On April l, 2004, after a hearing, the

Court concluded that further visits with Mother would

be psychologically injurious to [RGB]. Visitations

between [RGB] and Mother were suspended indefinitely.

60. Shortly after the visits with Mother were

suspended, [RGB’s] symptoms of distress and anxiety

disappeared.

61. Mother has had no contact with [RGB] since

March l2, 2004.

62. Over the years, Mother has substantially

improved her circumstances. She has stopped abusing

drugs and alcohol; her mental health condition has

improved; she has required no hospitalization for

mental health problems. Mother has consistently

sought treatment_and has taken medication when

prescribed. Mother has found safe and stable housing,

and has managed to maintain such housing for an

extended period of time. She has terminated her

relationship with an inappropriate, abusive partner.

She has obtained and completed services, and has for

the most part successfully completed the services

required in her service plan.

63. Unfortunately[,] serious problems remain.

Throughout the course of these proceedings, Mother has

suffered from mental health disorders which seriously

compromise her ability to provide appropriate care for

[RGB] . ‘

64. Mother suffers from a mental health

condition that distorts her perceptions of people and

this causes her to come into conflict with and to

refuse to cooperate with people that are trying to

help her.

69. Mother does not understand or appreciate

the impact that her own behavior has on [RGB]. She

accepts little responsibility for [RGB’s] problems and

instead focuses on complaints and criticisms of

others.

73. when visits with Mother were finally

terminated, [RGB] was almost five. At that time,

[RGB] was a very vulnerable child who suffered from

anxiety, regressive behavior, negative psychological

symptomatololgy [sic] and general emotional

disruption. [RGB’s] psychological distress threatened

to interfere with her developmental growth and bonding

abilities, [RGB’s] psychological problems were

primarily caused by stress generated by visits with

Mother.

74. At the time that visits between Mother and

[RGB] were terminated, the visits were causing injury

to [RGB’s] psychological capacity as evidenced by a

5 Several of the family court's FsOF are misnumbered, and several

numbers appear more than once. The original numbering is preserved here.

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substantial impairment in [RGB’s] ability to function.

Had the visits with Mother continued, [RGB] would have

suffered continued psychological harm which would have

resulted in serious injury to her, delaying physical,

emotional, social, and/or psychological development

with long term negative consequences for the child,

75. Despite numerous and extensive efforts by

many service providers and therapists, it appears

unlikely that the mother/daughter relationship between

Mother and [RGB] will improve. Returning [RGB] to

Mother's home and care would be harmful to [RGB].

76. [RGB] is now almost six. After visits with

her mother terminated, [RGB’s] symptoms of

psychological distress have abated and she is doing

very well.

77. Under the circumstances presented in this

case, reasonable efforts were made by the DHS to make

it possible for [RGB] to return to her mother's home.

78. Mother and Father[5] are not currently able

to provide [RGB] with a safe family home, even with

the assistance of a service plan. It is not

reasonably foreseeable that either parent will become

able to provide [RGB] with a safe family home within a

reasonable period of time.

79. The proposed permanent plan is in the best

interests of [RGB].

The family court concluded that “[i]t is in the best

interests of [RGB] that permanent custody of the child be awarded

to DHS.” The family court ordered, in pertinent part:

2. Permanent custody of [RGB] is awarded to the

Department of Human Services pursuant to H.R.S. 587-

73(b)(l) and existing parental rights of Mother and

Father of [RGB] are terminated,

4. It is in [RGB’s] best interests that the

participation of Mother and Father in subsequent

hearings be limited or restricted to appearances on

any motions for relief from this decision and order or

any motions necessary to pursue an appeal. ’

7. G. Kay Iopa, stand-by counsel for Mother, is

discharged. Based on representations as to changes in

her resource status, if Mother wishes the assistance

of court-appointed counsel to pursue further relief or

to perfect an appeal, she must tender a new

application for court-appointed counsel to the Court

immediately.

(Emphasis added)¢

B. Mother's difficulties with counsel

5 Father was defaulted from the proceedings in October 200l,

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As stated in the family court's March ll, 2005 FsOF,

“[t]hroughout this proceeding, Mother has had difficulties with

her attorneys.” Mother's first attorney, Cynthia Linet, withdrew

as counsel for Mother on November 30, 200l. Mother then

proceeded pro se. However, during an April 4, 2002 hearing, the

family court awarded DHS foster custody of RGB. Mother

subsequently applied for court-appointed counsel on April 8,

2002, and the family court appointed Alexander Thoene, Jr.

(Thoene) as counsel for Mother. Mother, however, continued to

submit documents to the court on her own behalf, including an

Objection to Proposed Order dated April l9, 2002.

On July 8, 2002, Mother filed a motion to dismiss

Thoene as counsel and to proceed pro se. In its order following

a hearing on August 8, 2002, the family court denied Mother's

motion to dismiss Thoene, but allowed Mother to proceed pro se

with Thoene as standby counsel.

On May l5, 2003, G. Kay Iopa (Iopa) was substituted “as

counsel” for Mother, effective May l, 2003. Mother continued to

file motions on her own behalf, including a May 21, 2003

Emergency Motion to Advance June 13, 2003 Hearing on Mother's

Motion to Restore Visitation.

lt appears that Mother subsequently had difficulties

with Iopa. On July 21, 2003, the family court held a hearing and

issued an order that noted, “Mother can obtain a new lawyer or

apply for court appointed counsel. If she obtains a new counsel,

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Ms. Iopa will be [discharged].” In a hearing on July l2, 2004,

Mother made an oral motion for a new attorney. In its written

order, which was not issued until March 7, 2005, the family court

denied Mother's oral motion and noted her objection for the

record. The family court noted:

[Iopa] was appointed as stand by counsel as [Mother]

wanted to represent herself. At times [Mother]

represented herself and at times relied on Ms. Iopa.

The court accepted this as the court felt it was

useful. The court has seen nothing to indicate Ms.

Iopa [has] not been effective in her representation

and notes Ms. Iopa has worked hard to assist [Mother].

Little purpose would be served to appoint a new

attorney. The new attorney would have a difficult

time getting up to speed due to the volume of

documents in this case & does not see how new counsel

could provide better representation.

On September 17, 2004, Mother filed a pro se Motion for

Dismissal of Counsel and Continuance of September 20 [H]earing

and to Grant Continuance to Submit witness Letters. Mother

,stated:

3. Assigned counsel, Kay Iopa, has told me

repeatedly since July 29, 2004 that “it is beyond my

scope of duties as stand-by counsel” to help locate,

contact, or interview witnesses.

4. By contrast, a) the lawyer has made

decisions without my knowledge or consent b) Kay

Iopa's assignment to this case has caused lawyers who

were interested in this case to decline, because they

choose not to compete with the lawyer assigned as

counsel.

5. Affiant has enough money today to secure

independent counsel.

6. Absence of counsel would encourage new

counsel to help me conclude this case effectively, and

therefore would in fact be more time and cost

effective.

7. Affiant compels the court to note that this

lawyer, and counsel preceding assigned by the court,

have neglected proper counsel or representation and

proof of my ability to work with another lawyer needs

to be considered.

8. volunteer lawyer prior to that was effective

in returning my child home, then was unable to

continue pro bono.

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On October 21, 2004, Mother submitted an Application

for Court-Appointed Counsel. A handwritten note on her

application states, “Application denied[.] Ms. Iopa will

continue as stand by counsel until further order.”

»C. Subsequent proceedings

Following the six-day permanency plan hearing, the

family court issued its March ll, 2005 Termination Order, in

which the court discharged Iopa.7 On March 29, 2005, Mother

filed an Application for Court-Appointed Counsel. The family

court approved the application the same day, and appointed

Carrie M. Yonemori (Yonemori) as Mother's counsel effective

March 29, 2005. Yonemori appears to have been appointed as

regular, as opposed to standby, counsel.

There are no filings in the record from either Yonemori

or Mother from March 29, 2005 to March l0, 2006.8 The record is

silent during the intervening period, with the exception of

several orders of the family court continuing permanent custody

7 In its Termination Order, the family court noted that it made its

decision to discharge Iopa “[b]ased on representations as to changes in

[Mother's] resource status.” Although we do not have a transcript of the

proceedings to indicate what was represented to the family court, Mother's

prior statements to the family court concerning her resources include her

September l7, 2004 Motion for Dismissal of Counsel in which she stated,

“[a]ffiant has enough money today to secure independent counsel[,]” and a

February l, 2005 Pro Se Closing Argument and Request in which Mother stated,

“[m]y financial future is more secure based on an inheritance from my parents,

currently under probate in Montgomery County, Pennsylvania.”

5 As explained further, infra, on March l7, 2006, Yonemori filed a

declaration stating that she had attempted to file a Notice of Appeal “on or

about September 30, 2005,” but that the documents were returned to her for

corrections. Yonemori asserted that she “completely forgot about making the

appropriate corrections for this case.”

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and various filings on the part of RGB's guardian ad litem and

DHS.

For example, on August 3, 2005, DHS filed a report to

the family court in which it noted that RGB was “doing well in

her current placement[,]” but that Mother's appeal “may delay the

adoption process[.]” On August 4, 2005, RGB's guardian ad litem

filed a report stating that DHS would be unable to proceed with

adoption until Mother's appeal was resolved, and noted that

delaying the adoption “is certainly not in the child’s best

interest[.]” On January l7, 2006, DHS filed a report to the

family court in which it noted that RGB “continues to do very

well in the care of foster parents, . . : whom she has resided

with for nearly four years.” DHS further noted that RGB's foster

parents were “ready to proceed with the adoption process[.]”

On March l0, 2006, Mother filed a pro se Motion for

Relief from Judgment with regard to the family court's March 1l,

2005 Termination Order, pursuant to HFCR Rule 60.9 Mother

submitted an affidavit along with the motion, in which she

declared:

l. I am the mother of [RGB];

2. The court made a finding to terminate my parental

rights on March 11, 2005.

3. Counsel assigned by this court remains ineffective

to bring this matter to justice;

4. The court made it's finding based on false and

inaccurate information;

5. Based on the mistake, inadvertence, surprise,

9 As discussed more fully in Part III(B), infra, HFCR Rule 60(b)

permits a party, within certain limitations, to seek relief from a judgment or

order for reasons of mistake, inadvertence, excusable neglect, newly

discovered evidence, fraud, and “any other reason justifying relief[.]”

_15_

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excusable neglect, fraud, misrepresentation,

professional error, misconduct and/or newly discovered

evidence, I now bring this motion.

On March l3, 2006, Yonemori filed a Notice of Appeal of

the Termination Order on Mother's behalf.” On March l5, 2006,

Yonemori also filed a Motion for Relief from the March l1, 2005

Order, pursuant to HFCR Rule 60, on Mother's behalf. In

Yonemori’s Declaration of Counsel in support of the motion, she

asserted:

2. I am bringing this Motion . . . because

[Mother] believes that there has been (a) mistake,

inadvertence, and/or excusable neglect; (b) newly

discovered evidence which by due diligence could not

have been discovered in time to move for a new trial

under Rule 59(b); and (c) fraud, misrepresentations

and/or other misconduct by the state.

3. [Mother] states that the court's final

judgment is based on false testimony and deficient

documents, some of which she was not able to properly

cross-examine, and therefore through mistake,

inadvertence, and/or excusable neglect the court has

rendered an erroneous decision which must be

corrected.

4. Under-signed was appointed as counsel to

[Mother] after the ten day time allowed for in Rule

59(b) and therefore she and [Mother] did not have an

opportunity to discuss [Mother's] concerns and/or go

through the voluminous record in this case.

5. [Mother] believes that the State's

witnesses, documents, and testimony were fraudulent,

grossly misrepresented facts, and constituted

purposeful misconduct.

6. [Mother] has attempted to bring up these

points and arguments, as well has [sic] have her side

of the case heard, to the court in the past by [sic]

m On June 28, 2006, this court dismissed the appeal for lack of

jurisdiction, stating:

Mother-Appellant did not file a motion for

reconsideration within twenty days after entry of the

March 1l, 2005 findings of fact, conclusions of law,

and order, as [HawaFi Revised Statutes (HRS)] § 571-

54 (l993) required. Therefore, Mother-Appellant

failed to perfect her right to assert an appeal under

HRS § 571-54 (l993), and there is no appealable order.

Absent an appealable order, we lack jurisdiction over

this case.

_16_

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was prevented from doing so by her attorneys.

On March l7, 2006, Yonemori, on behalf of Mother, filed

two separate motions to extend time to file and docket the record

on appeal. Although both motions were file-stamped March l7,

2006, the first was dated September 27, 2005, and the second was

dated March l0, 2006.

In her Declaration of Counsel accompanying the motion

dated September 27, 2005, Yonemori declared:

2. That I was unaware that a Notice of Appeal

had not been filed in the case herein. I have only

done a few Family Court DHS appeals and in all

previous cases, the prior attorney had filed the

Notice of Appeal.

6. That between late March and August of this

year, I have had four (4) close family members

pass away. Therefore, 1 may have been preoccupied and

not as vigilant about case details.

7. That the delay in filing the Notice of

Appeal was in no way caused by the appellant, who is

understandably quite anxious about this case.

In her Declaration of Counsel accompanying the motion

dated March 10, 2006, Yonemori declared:

2. That on or about September 30, 2005[,] I

filed a Notice of Appeal in the case herein.

3. That sometime in October, I was notified by

Family Court Clerk Jodi Leialoha that my cover page

was in error and that the documents were being

returned to me for corrections.

4. That I waited for the return of the

documents and checked my court jacket at the Circuit

Court on a weekly basis. 1 did not realize that the

documents were returned to me via my Family Court

jacket until late November.

5. That my close friend . . . passed away in

late November and I left shortly thereafter for the

mainland to attend his funeral and for sometime off.

6. That due to the stresses of leaving for the

mainland, holidays, and finishing up work for

EPIC/Ohana Conferencing, I completely forgot about

making the appropriate corrections for this case.

7. That the delays in filing all papers in this

case are due to my irresponsibility and are in no way

caused by the appellant, who is understandably quite

anxious about this case.

_]_'7_

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The family court appears to have been concerned that

Yonemori could have a conflict of interest in representing Mother

in an appeal alleging ineffective assistance of counsel. The

family court held a hearing on April 6, 2006 and found that,

“[b]ased upon [Mother's] representations in court, the court

finds she understands the potential conflict of interest between

her & her current counsel & waives any conflict of interest.”

The family court further noted, “[Mother] waives any conflict of

interest as to her current counsel.”

On May 23, 2006, DHS filed a report to the family

court, in which it noted that “[RGB] continue[d] in her

placement” where she “has been [] since April 4, 2002[,]” that

she “wants to remain there forever because she loves her foster

parents whom she refers to as ‘mom' and ‘dad[,]'” and that “she

wants to be adopted as soon as possible[.]”

On June 2, 2006, Mother, through Yonemori, filed a

”“ Yonemori

document styled “Specifications on Rule 60 Motions.

asserted that Mother had verbally agreed to consolidate the two

previously-filed Rule 60 motions. Yonemori also provided some

argument on Mother's previous assertions that she was entitled to

relief due to “(l) mistake, inadvertence, and/or excusable

neglect; (2) newly discovered evidence which by due diligence

n Although this document is file-stamped “May 33, 2006,” a hand-

written date of “June 2" appears above the stamped date.

_1g_

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could not have been discovered in time to move for a new trial

under Rule 59(b); and (3) fraud, misrepresentations and/or other

misconduct by the state.”

with regard to Mother's assertion that she was entitled

to relief due to mistake, inadvertence and/or excusable neglect,

Mother, through Yonemori, asserted that the court's judgment was

based on false or erroneous testimony and documents. Mother

further asserted that she was prejudiced by the ineffective

assistance of Thoene because she was only allowed to communicate

with him in writing, and of Iopa because they disagreed as to

case direction. Mother further asserted that Yonemori's “failure

to file a timely appeal and meet with [Mother] in 2005” had

delayed resolution of the case.

with regard to Mother's assertion that she was entitled

to relief due to newly discovered evidence, Mother asserted that

she and RGB were beneficiaries of her parents' trust, which had

been the subject of litigation at the time of the permanency plan

proceedings. Mother further asserted that termination of her

parental rights would impact RGB’s inheritance rights, and that

any “perceived deficiencies” in Mother's care of RGB would be

corrected when she received the trust proceeds.

with regard to Mother's assertion that she was entitled

to relief on the basis of fraud, misrepresentations and/or

misconduct by the State, Mother asserted that “State's witnesses,

documents and testimony were fraudulent, grossly misrepresented

_l9_

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facts, and constituted purposeful misconduct.”

Also on June 2, 2006, Yonemori filed a Motion for

withdrawal and Substitution of Counsel. 1n Yonemori’s

Declaration of Counsel in support of the motion, Yonemori

asserted:

2. 1 am bringing this Motion for withdrawal and

Substitution of Counsel because 1 believe that a legal

conflict exists with my continued representation of

[Mother].

3. [Mother's] Rule 60 motion alleges in part

ineffective assistance of counsel. 1 am one of the

three attorneys who may not have effectively assisted

[Mother].

4. [Mother] verbally executed a waiver of

conflict with me at the last court hearing.

5. 1 do not want to see [Mother] prejudiced in

anyway [sic] by her waiver and 1 have spoken to her

about the importance of preserving all possible

grounds of appeal. [Mother] stated that it was not

her intent that this waiver be “permanent.”

10. [Mother] is in contact with an attorney (in

California, but also still actively licensed in

Hawaii) who has excellent foresight and understanding

about this case. 1 have also spoken with him about

the pending Rule 60 motion and possible appeal. 1t is

my recommendation that the court consider appointing

this individual as [Mother's] counsel.

The family court held a hearing on June 2, 2006 and, in

its corresponding June 26, 2006 order, found that “due to

[Mother's] current appeal, this court lacks jurisdiction to act

on her Rule 60(b) motion and motion for withdrawal and

substitution of counsel[.]” The court “[held] in abeyance any

ruling on [Mother's] Rule 60(b) motion or motion for withdrawal

and substitution unless moved on; and directs her and her counsel

to address these to the appellate court.” On June 28, 2006, this

court dismissed the appeal for lack of jurisdiction, See n.10,

SUQI`B. .

_20..

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Subsequently, on September 28, 2006, the family court

orally denied the motions for relief and Yonemori’s motion to

withdraw. On October 17, 2006, prior to the issuance of the

family court's written order, Mother appealed pro se from the

family court's oral announcement denying her motions for relief.

The 1CA dismissed Mother's appeal for lack of jurisdiction,

“because the family court ha[d] not reduced the September 28,

2006 oral announcement to an appealable written order.”

On November 9, 2006, the family court issued its

written order, denying Mother's pro se motion and Yonemori’s

motion for relief, as well as Yonemori's motion for withdrawal

and substitution of counsel. The court found that Yonemori's

motion for relief was untimely. with regard to Mother's pro se

motion, the family court found:

(1) the motion only requests general relief and Rule

60(b) requires particularity with respect to [] some

of the relief being sought in this motion; (2) the

motion fails to provide any new evidence to support a

basis for relief under Rule 60(b), Hawaii Family Court

Rules; (3) as to the relief sought, the court afforded

Mother . . . extensive time at trial to present

evidence to support the relief currently being

requested and to address all of the issues for which

relief is being sought in this motion; (3) [sic] the

court appointed legal counsels to assist Mother

to the extent she was willing to work with the legal

counsels appointed; (4) Rule 6, Hawaii Family Court

Rules does not permit the court to extend or enlarge

the time within which to bring this motion and the

court will not enlarge or extend the time within which

this motion can be brought; and (5) the time within

which to bring this motion has been long outstanding

causing delay in the final resolution of the case and

this matter needs to be put to rest[.]

The family court also found:

Mother['s] . . . parental rights have been terminated

'and due to this status and the possibility of

_2l_

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dissemination of these confidential records, the court

finds that future court records are not currently

available to Mother . . . ; provided however that

court records will be made available for any appellate

review of this decision.

Mother did not appeal the family court's written order.

On February 6, 2007, Mother's new counsel, James

Ireijo,” filed a motion in the family court for “l) New Trial,

and/or 2) To Reconsider and/or Amend Judgment and/or All Previous

Orders, and/or 3) For Release of All Evidence or Files in Case,

and/or 4) For Dismissal.” The motion cited HFCR Rule 7(b), and

was supported by a Declaration of Counsel, which asserted that

Mother was not afforded competent legal counsel during several

“pivotal” moments in the case, and was therefore denied her due

process rights and equal protection of the law under the United

States and HawaFi Constitutions. Specifically, the declaration

alleged that Mother was not represented by competent counsel and

was denied her due process rights by:

the Order Denying Mother's Motion to Reconsider Denial

of Oral Motion To Continue Trial; and Exclusion of

Exhibits Filed December 23, 2004, filed on March 7,

2005,[“] and/or, the Order Denying Mother's Motion to

n 1t is unclear from the record when or how Yonemori withdrew from

the case.

3 On December 23, 2004, Mother filed a Motion to Reconsider Denial

of Oral Motion to Continue Trial, and Exclusion of Exhibits. Mother requested

that the court “[c]ontinue the evidentiary portion of the proceedings to allow

MOTHER to call additional witnesses, whose identities have been previously

disclosed[,]” and “[t]o allow the admission into evidence, audio tapes

prepared by MOTHER of parent/child visits and MOTHER's interactions with

service providers.” Mother's motion was supported by a Declaration of

Counsel, in which 1opa attested:

2. MOTHER has strongly expressed her

dissatisfaction with the extent of information before

the Court;

3. MOTHER wishes to bring additional witnesses,

_22_

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Reinstate visitation Filed January 11, 2005, filed on

March 7, 2005,[“] and/or at the time of entry of the

Court's Findings of Fact, Conclusions of Law and Order

filed on March 11, 2005.

(Emphasis in original).

The Declaration further asserted:

[Mother] did not have competent or any counsel when

her child was permanently removed or taken away by

Order on March 1l, 2005, thus, the lack thereafter of

a fair and legal opportunity to have further evidence

considered or not considered, as well as losing her

right to appeal due to severe time constraints.

The Declaration did not specify what error, if any,

occurred during the permanency plan hearing. The Declaration

further asserted that denying Mother access to records available

to the appellate court was “a direct violation of the right to

due process[.]”

DHS filed a memorandum in opposition to Mother's motion

on April 23, 2007. DHS objected to Mother's motion for relief as

untimely and asserted that the motion lacked merit because “the

record reflects that during the course of the case, Mother

dictated who would represent her and how they would represent her

introduce audio tapes and augment her previous

testimony;

4. MOTHER's desire is to provide the Court with

a proper basis for its decision and to ensure a

complete record; and

5. MOTHER seeks this additional opportunity as

an accommodation for her established disability.

The family court issued its written denial of Mother's motion on

March 7, 2005.

M On January 1l, 2005, Mother filed a Motion to Reinstate

Visitation. Mother's motion was supported by a Declaration of Counsel, in

which Iopa stated that Mother was receiving care from Care HawaFi and had

been prescribed medication for anxiety, and that the YMCA was willing to

supervise visits between Mother and RGB. The family court issued its written

denial of Mother's motion on March 7, 2005.

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and the court tried it's [sic] best to accommodate Mother and to

ensure she had assistance even when she desired to represent

herself pro se.” DHS further asserted that “until the time

Mother's parental rights were terminated, she had access to the

court's records and files and any appeal would have been

predicated upon the record up to the point of such

termination.”“

DHS argued that, “[a]t all relevant times herein Mother

had competent representation, in that the court appointed counsel

for Mother, or permitted Mother to proceed pro se if she could or

appointed standby counsel to assist Mother in her case up and

through the permanent plan hearing trial.” DH5 further argued

that “Rule 60(b) should be used only where the relief will

further justice without adversely affecting substantial rights of

the parties. . . . it is clear the relief sought by this motion

would adversely affect the child’s substantial rights, and

justice would not be served.”

On April 24, 2007, more than two years after the filing

of its Termination Order, the family court held a hearing on

Mother's motion. The court denied the motion and all relief

therein requested. The family court issued its written order on

May 8, 2007, finding:

“ As discussed further, supra, it appears that Mother had full

access to the court records in this case until a September 28, 2006 hearing

before the family court, following which the family court issued its

November 9, 2006 order restricting prospectively Mother's access to court

records,

_24_

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A. As to Mothers [sic] claim that Mother lacked

representation, the record clearly reflects that both

Judges involved in this case made great effort to have

Mother represented throughout the proceedings. The

court accommodated Mother when she requested to have

her counsel discharged and had standby counsel

appointed to assist Mother throughout the case, all of

which is reflected in the court's prior ruling

contained in it's Findings of Fact, Conclusions of Law

and Order filed March 11, 2005;

B. The court adopts all of the facts, law and reasons

cited in DHS' Memorandum in Opposition [tb Mother's

motion]

On June 7, 2007, Mother filed a Notice of Appeal of the

family court's May 8, 2007 order denying relief.

D. ICA Appeal

1n her Opening Brief to the 1CA, Mother, citing Mathews

v. Eldridge, 424 U.S. 319 (1976) and Lassiter v. Department of

Social Services, 452 U.S. 18 (1981), argued that the family court

denied her constitutional due process rights by failing to

provide her with competent counsel. Mother further argued that,

because she did not have appointed counsel until “a mere 12 days

before [Mother's] appeal period would run. . . . she lost her

opportunity to have evidence reconsidered and effectively lost

her right to file a timely appeal.” Mother also argued that, by

refusing to allow her to review the confidential records in this

'case, the family court deprived her of her due process right to a

fair trial. Mother requested that the matter be remanded for “a

new trial with competent counsel present at all stages of her new

proceeding to prove that she is a competent and fit parent that

has the ability to provide a safe family home.” (Emphasis in

_25_

***FoR PUBLICATMN IN wEsT's HAWAI‘: REPoRTs AND PAcIFIc REPQRTER***

original).

1n its Answering Brief, DHS argued that the family

court did not abuse its discretion in its May 8, 2007 order

denying relief. DHS argued that Mother's February 6, 2007 motion

was not timely, because “it was not filed within one (1) year of

the March 11, 2005 order terminating Mother's parental rights.”

DHS further argued that “there was no new evidence which would

serve as a basis to re-open the case[,]” and that “Mother failed

to present new evidence and/or arguments that could not have been

presented at trial[.]”

DHS also argued that Mother's assertion that she was

denied access to the record was without merit, because “the court

did not prohibit Mother's access to records until September 28,

2006, . . . which was a year and a half after her parental rights

were terminated, and six months beyond the time Mother would be

permitted to file a Rule 60, HFCR motion . . . .” Finally, DHS

argued that the analysis of Eldridge and Lassiter was

inapplicable, because Mother “had counsel at all times during the

pendency of this case[,]” and because she could not demonstrate

substantial prejudice. 1n response to Mother's claim that she

was denied time for her appellate counsel to file an appeal, DHS

argued that “based upon the facts, it is Mother's own actions

which caused a delay.”

Mother subsequently filed a Reply Brief arguing:

Her attorney selected by the trial court was appointed

so late that it was clearly foreseeable that the 30

_26_

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day appeal period would run. The responsibility in

initially correcting this problem laid with Judge

Gaddis, who initiated and created the problem at

Mother's expense. . . . Judge Gaddis could have made

the appointment of new counsel while extending the due

date to file a Notice of Appeal. 1nstead, he made a

very late appointment of new counsel and jeopardized

the legal and appeal interests of Mother. The trial

judge not only filed an order against Mother, he

failed to also protect Mother's concomitant due

process interests in ensuring that she would be able

to timely file a new Notice of Appeal. This is a

clear violation of the due process rights of Mother

that was easily preventable by the trial court.

(Emphasis in original).

Mother further asserted that “[a]s the trial court is

responsible for timely appointing counsel, the court could have

very easily extended the appeal due date or forewarned counsel of

a pending notice of appeal due date.” (Emphasis in original).

1n its April 9, 2009 Summary Disposition Order (SDO),

the 1CA concluded that “the [f]amily [c]ourt did not err in

declining to grant Mother relief based on ineffective assistance

of counsel.” 1n re RGB, No. 28582, 2009 WL 953392 at *2 (App.

Apr. 9, 2009). The 1CA further noted that “[f]rom Mother's

point-of-view, this appeal concerns the termination of her

parental rights with respect to her child . . . . However, the

1ermination Order is not before the court on this appeal.” 1d;

at *l.

with regard to Mother's claim of ineffective assistance

of counsel during the pre-termination period, the 1CA noted:

Mother fails to identify with specificity, however, at

which points in the case that she was

unconstitutionally deprived of access to competent

counsel. 1t appears from the record that Mother was

represented by appointed counsel or standby consulting

counsel at all hearings leading up to the Termination

._2'7_

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PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

1d. at *2.

1CA noted:

Id.

Order. More importantly, Mother does not

identify any specific error or omission of counsel

during the events and proceedings which culminated in

the Termination Order.

with respect to the post-termination time frame, the

[T]his court is troubled by the impact of the

Termination Order's immediate discharge of Mother's

standby attorney, particularly in light of the

[f]amily [c]ourt’s assessment of Mother's mental

health status That said, Mother has not

identified to this court a single “appealable issue”

that could have been raised had counsel preserved her

rights to an appeal from the Termination Order.

The ICA concluded by stating:

the standard that is applied

of appellate

1n this case,

meritorious basis

a motion to

we consider, by analogy,

to claims of ineffective assistance

counsel in criminal matters. .

Mother has failed to even suggest a

upon which counsel could have filed

reconsider and could have raised on appeal from the

Termination Order. For these reasons, we conclude

that the Family Court did not err in declining to

grant Mother relief based on ineffective assistance of

counsel.

(Citation omitted).

with regard to Mother's claim that her due process

rights were violated by being denied access to the record in this

case, the

lCA held:

This limitation appears to be supported by HRS §

587-73(b)(4) (2006) and is grounded in the Family

Court's prior final decision that Mother had no

further parental rights or interests in the ,

proceedings. Mother has not informed this court of

any documents or category of documents that she

reasonably requested access to or why she needs full

access to the post-November 6, 2006 record in this

case. Mother has failed to identify any prejudice

stemming from this limitation. we conclude that

the Circuit Court did not err in limiting Mother's

access to the post-November 6, 2006 confidential

._28_

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record in this case.

1d; at *3.

The 1CA filed its judgment affirming the family court's

May 8, 2007 order on May 21, 2009. Mother timely filed an

application for writ of certiorari on August l3, 2009. DHS filed

its response on August 28, 2009.

1n her application, Mother “requestfed] the Court to

apply or formulate a family court standard of the correct remedy

for ‘ineffective assistance of counsel' and if found, to grant a

new trial.” Mother further asserted that “[i]t is legally

impossible to raise any points until the records are released for

review.”

1n its Objection, DHS argued that the 1CA's analogy to

the criminal standard for ineffective assistance of counsel was

appropriate. DHS further argued that Mother had full access to

all records upon which an appeal would have been based.

I1. Standard of Review

The family court's denial of a motion under HFCR Rule

60(b)(6) is reviewed for abuse of discretion. Pratt v. Pratt,

104 Hawafi 37, 42, 84 P.3d 545, 550 (2004). AS the ICA noted in

Hayashi v. Hayashi, 4 Haw. App. 286, 666 P.2d 171 (1983):

[s]ince Rule 60(b)(6) relief is contrary to the

general rule favoring finality of actions, the court

must carefully weigh all of the conflicting

considerations inherent in such applications. Once

the court has made a determination to grant or deny

relief, the exercise of its discretion will not be set

aside unless the appellate court is persuaded that,

under the circumstances of the case, the court abused

its discretion.

_29_

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1Q4 at 291, 666 P.2d at 175 (citations omitted).

An “abuse of discretion occurs where the trial court

has clearly exceeded the bounds of reason or disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant.” Buscher v. Boning, 114 HawaFi 202, 211, 159

P.3d 814, 823 (2007) (quoting Office of Hawaiian Affairs v.

State, ll0 HaWaiT_338, 35l, 133 P.3d 767, 780 (2006)). In

addition, “[t]he burden of establishing abuse of discretion is on

appellant, and a strong showing is required to establish it.”

State v. HintOn, 120 Hawafi 265, 273, 204 P.3d 484, 492 (2009)

(quoting State v. wong, 97 HawaFi 512, 517, 40 P.3d 914, 919

(2002)).

III. Discussion

1n Mother's February 6, 2007 motion, Mother asserted

that she was deprived of effective assistance of counsel in both

the pre- and post-termination proceedings, in violation of her

due process and equal protection rights under the United States

and HawaFi Constitutions. For the reasons set forth below, we

construe Mother's motion as a HFCR Rule 60(b)(6) motion for

relief and conclude that the family court did not abuse its

discretion in denying the motion.

A. The family court properly concluded that Mother had a due

process right to appointed counsel during the termination

proceedings

The United States Constitution does not require the

_3@_

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appointment of counsel in all proceedings involving the potential

for termination of parental rights. Lassiter, 452 U.S. at 31.

Rather, due process requires that “[a] parent’s interest in the

accuracy and justice of the decision to terminate his or her

parental status” be balanced against the State's interest in the

welfare of the child and the economy of the proceedings, as well

as against the risk that “a parent will be erroneously deprived

of his or her child because the parent is not represented by

counsel.” 1d4 at 27-28 (citing Eldridge, 424 U.S. at 335). 1n

Lassiter, the Court held that:

[t]he dispositive question . . . is whether the three

Eldridge factors,[“] when weighed against the

presumption that there is no right to appointed

counsel in the absence of at least a potential

deprivation of physical liberty, suffice to rebut that

presumption and thus to lead to the conclusion that

the Due Process Clause requires the appointment of

counsel when a State seeks to terminate an indigent's

parental status.

1d4 at 31.

This court has not determined whether article 1,

section 5 of the HawaFi Constitution affords parents a due

process right to counsel in all termination proceedings."

However, in 1n re Doe, 99 Hawafi 522, 533, 57 P.3d 447, 458

(2002) (citation omitted), we held that article 1, section 5 of

“ 1n determining what due process requires under Eldridge, the court

must consider “the private interests at stake, the government's interest, and

the risk that the procedures used will lead to erroneous decisions.” See

Lassiter, 452 U.S. at 27.

17 Article 1, section 5 of the HawaFi Constitution provides that

“[n]o person shall be deprived of life, liberty or property without due

process of law, nor be denied the equal protection of the laws[.]”

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the Hawafi Constitution provides parents a “substantive liberty

interest in the care, custody, and control of their children,”

independent of the United States Constitution, and that the state

must provide parents “a fair procedure” for the deprivation of

that liberty interest,

1n QQ§, we concluded that “parents who are in need of

an interpreter because of their inability to understand English

are entitled to the assistance of one at any family court hearing

in which their parental rights are substantially affected.” ldé

at 526, 57 P.3d at 451. we further concluded that the

determination of whether parental rights are substantially

affected, such that due process is implicated, must be made on.a

case-by-case basis. ld4 at 534, 57 P.3d at 459 (citing Lassiter,

452 U.S. at 32).

Under the circumstances of Qg§, however, we concluded

that the Appellant-Mother had failed to demonstrate her need for

an interpreter, and failed to demonstrate that she was

“substantially prejudiced” by the absence of an interpreter. 1d.

at 526, 57 P.3d at 451. Accordingly, we affirmed the order of

the circuit court, which granted foster custody of the children

to DHS. lQ4

1n 1n re “A” Children, 119 Hawaii 28, 46, 193 P.3d

1228, 1246 (App. 2008), the 1CA noted that the appointment of

counsel remains discretionary under HRS § 587-34, which provides,

in pertinent part:

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Guardian ad litem; court appointed counsel. (a) The

court shall appoint a guardian ad litem for the child

to serve throughout the pendency of the child

protective proceedings under this chapter. The court

may appoint additional counsel for the child pursuant

to subsection (c) or independent counsel for any other

party if the party is an indigent, counsel is

necessary to protect the party's interests adequately,

and the interests are not represented adequately by

another party who is represented by counsel.

HRS § 587-34 (2006)(emphasis added).

The 1CA therefore applied the case-by-case approach

adopted in Lassiter, and concluded that a father was deprived of

his due process right to appointed counsel under the United

States Constitution, where counsel was not appointed until two

weeks before the termination proceedings. 119 Hawafi at 59-60,

193 P.3d at 1259-60. Although the 1CA expressed “grave concerns”

about the case-by-case approach, it declined to adopt a bright-

line rule requiring appointment of counsel for indigent parents

in all termination proceedings. lQy

1n this case, the family court immediately appointed

counsel upon Mother's initial application. Thereafter, Mother

was represented at all times by counsel or standby counsel,

except when Mother expressly requested to proceed pro se, and

during the period between March 11, 2005 (when the family court

discharged Iopa in its Termination Order) and March 28, 2005

(when the family court appointed Yonemori). Thus, in electing to

appoint counsel, it appears that the family court applied the

Lassiter balancing test, and concluded that the balance of

interests required that counsel be appointed for Mother in order

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to satisfy the demands of due process under the United States

Constitution. we conclude, with respect to those aspects of the

proceedings that Mother seeks to challenge here, that the family

court's determination was correct given the risk that failure to

appoint counsel would lead to an erroneous decision. §e§

Lassiter, 452 U.S. at 27.

Because the family court properly determined that

Mother had a right to counsel under the United States

Constitution, we decline to reach the question of whether the

HawaFi Constitution provides indigent parents a right to counsel

in all termination proceedings.“

B. HFCR Rule 60(b)(6) is, in the circumstances of this case, a

proper vehicle for raising ineffective assistance of counsel

in proceedings concerning the termination of parental rights

This appeal requires us to consider whether HFCR Rule

60(b)(6) (hereinafter “Rule 60(b)(6)”) is an appropriate vehicle

for raising ineffective assistance of counsel in proceedings

concerning the termination of parental rights. we note at the

outset that Mother's February 6, 2007 motion to the trial court,

styled a “Motion for 1) New Trial and/or 2) to Reconsider and/or

Amend Judgment and/or All Previous Orders, and/or 3) for Release

of all Evidence or Files in Case, and/or 4) for Dismissal[,]”

“ we therefore respectfully disagree with the dissent's assertion

that we hereby “den[y] indigent persons access to justice in parental

termination actions” or that we have adopted a “discretionary appointment

approach[.]” Dissenting Opinion at 1, 46. we recognize instead that, because

the family court properly determined that Mother had a due process right to

appointed counsel under the U.S. Constitution, the determination of what

protections the Hawafi Constitution provides to indigent parents is not

properly before us.

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stated only that she sought relief pursuant to HFCR Rule 7(b),

which is a general rule regarding pleadings and the form of

motions. However, in Mother's Opening Brief to the 1CA, she

asserted that the “standard of review for a denial of a motion

for post-decree relief is the abuse of discretion standard.” 1n

her Reply Brief, Mother described the “motion herein” as one

under Rule 60(b). Because a Rule 60(b)(6) motion appears to have

been the only motion for post-decree relief available to Mother

under the applicable rules,” and because the family court and

the 1CA both appeared to construe Mother's motion as a Rule

60(b)(6) motion, we review Mother's assertions under the

principles applicable to Rule 60(b)(6) motions.

1. Principles applicable to HFCR Rule 60(b)(6) motions

“Rule 60(b)(6) permits the trial court in its sound

discretion to relieve a party from a final judgment.” Hayashi, 4

Haw. App. at 290, 666 P.2d at 174 (citing 1semoto Contracting Co.

V. Andrade, l Haw. App. 202, 205, 616 P.2d l022, 1025 (l980)).

w At the time the Termination Order was filed, it was subject to

appeal only following the family court's decision on a motion for

reconsideration, which was required to be filed within twenty days of the

entry of the order. HRS § 571-54 (2005). However, a 2006 amendment to HRS §

571-54, which was designed to “speed the resolution of child protective

services cases,” eliminated the requirement that a motion for reconsideration

precede an appeal. S. Stand. Comm. Rep. No. 2245, in 2006 Senate Journal, at

1132. Nevertheless, HFCR Rule 72(b) requires that a notice of appeal be filed

within 30 days of a final decision or order. Accordingly, a direct appeal was

not available to Mother at the time she filed her February 6, 2007 motion.

Similarly, a motion for new trial was no longer available to Mother,

because HFCR Rule 59(b) requires that a motion for new trial be made within 10

days after the entry of judgment. 1n addition, a motion for relief from

judgment under Rule 60(b)(1), (2), or (3) must be made not more than one year

following judgment, and thus was no longer available to Mother. Finally,

although relief under Rule 60(b)(4) and (5) is not subject to the one-year

limitation, those rules do not appear to have been applicable to Mother's

circumstances.

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HFCR Rule

(Emphasis

for bringing a HFCR Rule 60(b)(6)

60(b) provides, in pertinent part:

On motion and upon such terms as are just, the court

may relieve a party or a party's legal representative

from any or all of the provisions of a final judgment,

order, or proceeding for the following reasons: (l)

mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence

could not have been discovered in time to move for a

new trial under Rule 59(b); (3) fraud . . . ,

misrepresentation, or other misconduct of a adverse

party; (4) the judgment is void; (5) the judgment has

been satisfied, released, or discharged, or a prior

judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that

the judgment should have prospective application; or

§6§ any other reason justifying relief from the

operation of the judgment. The motion shall be made

within a reasonable time, and for reasons (1), (2),

and (3) not more than one year after the judgment,

order, or proceedings was entered or taken.

added).

Although this court has not addressed the requirements

motion, the 1CA has explained

that, under HFCR Rule 60(b)(6), a movant must meet three

threshold requirements:

the movant must show that (1) the motion is based on

some reason other than those specifically stated in

clauses 60(b)(1) through (5); (2) the reason urged is

such as to justify the relief; and (3) the motion is

made within a reasonable time.

The first requirement is self-explanatory and

merely indicates that subsection (6) is a residual

clause to provide relief for considerations not

covered by the preceding five clauses. The second

requirement means that the movant must prove that

there are exceptional circumstances justifying relief.

The third requirement calls for diligence by the

moving party. Although Rule 60(b)(6) motions are not

subject to the one-year limitation, they must be ‘

brought within a reasonable time. what constitutes a

“reasonable time” is determined in the light of all

attendant circumstances, intervening rights, loss of

evidence, prejudice to the adverse party, the

commanding equities of the case, and the general

policy that judgments be final.

Since Rule 60(b)(6) relief is contrary to the

general rule favoring finality of actions, the court

must carefully weigh all of the conflicting

considerations inherent in such applications.

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Hayashi, 4 Haw. App. at 290-91, 666 P.2d at 174-5 (internal

citations omitted).

In Hayashi, the 1CA considered whether a six-year delay

in filing a Rule 60(b)(6) motion was justified by any

“exceptional circumstances” which would “mitigate the lengthy

delay in bringing the motion.” 4 Haw. App. at 291, 666 P.2d at

175. Hayashi involved wife's allegation that Husband's coercion

led her to execute a property settlement agreement (PSA) upon

their divorce. 1g. at 288, 666 P.2d at 173. 1n her HFCR Rule

60(b)(6) motion seeking relief from the PSA, wife claimed that

“before and after execution of the PSA and entry of the decree,

Husband exerted extreme influence over her so that she was acting

under coercion and emotional duress when she signed the PSA[,]”

and that “her dominated situation created the extraordinary

circumstances justifying relief.” 1g. at 291, 666 P.2d at 175.

The family court found no evidence of extraordinary

circumstances in the record to justify wife's six-year delay in

filing an HFCR Rule 60(b)(6) motion. 1g. The 1CA agreed, and

noted that wife had failed to prove the existence of

extraordinary circumstances because she had been represented at

all times by legal counsel who was able to protect her from any

coercive action, and because she had consulted with several other

lawyers prior to signing the PSA. 1g. Thus, while a six-year

delay in filing a Rule 60(b)(6) motion was not per se

unreasonable, wife's motion was deemed untimely. lg.

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Accordingly, the 1CA held that the family court did not abuse its

discretion in denying wife's motion. 1gg

Moreover, in Nakata v. Nakata, 3 Haw. App. 51, 56, 641

P.2d 333, 336 (App. l982), the ICA held that HFCR Rule 60(b)(6)

“should be used only where the relief will further justice

without adversely affecting substantial rights of the parties.”

(citing 11 Charles Alan wright & Arthur R. Miller, Federal

Practice and Procedure: Civil §§ 2857, 2864 (1st ed. 1973)). The

1CA further held that HFCR Rule 60(b) is not intended to

“reliev[e] a party from free, calculated, and deliberate choices

he, she, or it has made.” lgg at 56, 641 P.2d at 336 (citing 11

Charles Alan wright & Arthur R. Miller, Federal Practice and

Procedure: CiVil § 2864 (lSt ed. l973); 46 Am. Jur. 2d,

Judgments, § 688 (1969)).

1n what the 1CA construed to be a HFCR Rule 60(b)

motion, igg at 55, 641 P.2d at 336, wife sought relief from a

divorce decree that gave Husband the option to purchase the

marital residence at the conclusion of a six-month period if wife

failed to comply with a payoff provision, igy at 52-53, 641 P.2d

at 334-35. wife argued that “the court had the power to and

should extend the six months to allow her to purchase the house

upon the favorable terms stated in the decree[,l” ig. at 53, 641

P.2d at 335, and the family court granted her relief. lQg at 53-

54, 641 P.2d at 335. However, the 1CA deemed wife's HFCR Rule

60(b) claim “excessive,” and concluded that the family court

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abused its discretion in granting wife relief. lg. at 51, 56,

641 P.2d at 334, 336.

2. The use of Rule 60(b)(6) as a vehicle to raise

ineffective assistance of counsel in termination of

parental rights cases

A majority of states now routinely appoint counsel for

indigent parents in termination of parental rights cases, and

have concluded that the right to counsel includes a right to

effective counsel. §§g Susan Calkins, Ineffective Assistance of

Counsel in Parental-Rights Termination Cases: The Challenge for

Appellate Courts, 6 J. App. Prac. & Process 179, 193-99 (2004).

However, state courts have struggled to determine the proper

procedural vehicle for raising ineffective assistance of counsel

in termination of parental rights proceedings. §gg igy at 199.

A majority of jurisdictions has concluded that direct

appeal is the most appropriate method for raising ineffective

assistance of counsel in termination proceedings, due to the

particular need for expeditious resolution and finality in child

custody disputes. See, e.g., State ex rel. Juvenile Dep’t of

Multnomah County v. Geist, 796 P.2d 1193, 1201 (Or. 1990); 1n re

James W.H., 849 P.2d lO79, 1080 (N.M. Ct. App. l993); N.J. Div.

of Youth & Family Servs. v. B.R., 929 A.2d 1034, 1040 (N.J.

2007). where an appeal of an order terminating parental rights

has not been timely filed, some jurisdictions allow for an

enlargement of the time for filing an appeal upon a showing of

good cause. See, e.g., 1n re A.J., 143 P.3d 1143, 1146 (Colo.

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ct. App. 2006).

California allows a parent to raise ineffective

assistance of counsel in a petition for a writ of habeas corpus.

1n re Paul w., 60 Cal. Rptr. 3d 329, 333 (Cal. Ct. App. 2007)

(citing 1n re Kristin H., 54 Cal. Rptr. 2d 722, 725 (Cal. Ct.

App. 1996)). However, other jurisdictions have concluded that

habeas corpus is not the appropriate vehicle to collaterally

attack a judgment terminating parental rights on the basis of

ineffective assistance of counsel because it would increase

uncertainty in child custody proceedings and thereby limit the

possibility of adoption. See e. ., 1n re Jonathan M., 764 A.2d

739, 751-52 (Conn. 2001); see also Lehman v. Lvcoming CountV

Children's Serv.s. ACIenCV, 458 U.S. 502, 513-14 (l982) (holding

that federal habeas corpus may not be used to litigate

constitutional issues in child-custody matters because “[t]he

State's interest in finality is unusually strong in child-custody

disputes. The grant of federal habeas would prolong uncertainty

for children . . . possibly lessening their chances of

adoption.”).

Finally, some jurisdictions allow a claim of

ineffective assistance of counsel to be raised under rules

similar to HFCR Rule 60(b)(6). See Ex parte E.D., 777 So.2d 113

(Ala. 2000); 1n re Georgette, 768 N.E.2d 549, 557 (Mass. App. Ct.

2002). 1n Ex parte E.D., the Alabama Supreme Court held that “a

[Alabama Rules of Civil Procedure (ARCP)] Rule 60(b) motion,

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under certain circumstances, . . . can be an appropriate means by

which a parent facing the termination of parental rights can

present claims of ineffective assistance of appointed counsel.”

777 So.2d at 116. 1n that case, a mother's parental rights were

terminated, and her trial counsel subsequently withdrew from the

case. 1Qp at 114. The court appointed a new attorney for the

purpose of appeal and, on appeal, the Alabama Court of Civil

Appeals affirmed the termination order. 1gp Less than 60 days

later, the mother filed a motion pursuant to ARCP Rule 60(b)(6),

alleging ineffective assistance of trial counsel. 1gy

ARCP Rule 60(b)(6) is nearly identical to HFCR Rule

60(b)(6), and “permits a civil litigant to collaterally attack a

civil judgment” within a “reasonable time.” 1gp at 116. The

A1abama Supreme Court concluded that:

[w]hat constitutes a “reasonable time” depends on the

facts of each case, taking into consideration the

interest of finality, the reason for the delay, the

practical ability to learn earlier of the grounds

relied upon, and the prejudice to other parties.

1gy (quoting Ex parte w.J., 622 So.2d 358, 361 (Ala. 1993)

(quotation marks omitted)).

weighing the “drastic effect of the termination of

parental rights against the need for finality in the ultimate

disposition of questions regarding parental rights[,]” the

Alabama Supreme Court held that the mother's Rule 60(b)(6)

motion, filed within 60 days of the appellate court's judgment

affirming the termination order, was filed within a “reasonable

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time.” lgp

1n contrast, in 1n re Georgette, the Appeals Court of

Massachusetts noted that a motion raising ineffective assistance

of trial counsel and made pursuant to Massachusetts Rule of Civil

Procedure (MRCP) Rule 60(b)(6) “should be granted only in

extraordinary circumstances, which are not present when the

allegedly aggrieved party could have reasonably sought relief by

means of direct appeal.” 768 N.E.2d at 557. 1n that case, a

father's parental rights were terminated, and his two daughters

brought a MRCP Rule 60(b)(6) motion for a new trial, alleging

that their appointed trial counsel was ineffective. 1gy at 551.

Although the court did not expressly reject MRCP Rule 60(b)(6) as

a vehicle for raising ineffective assistance of counsel, it

rejected the daughters' motion as an “improper effort to obtain

relief.” 1d. at 557. The court further noted that:

1f cases are to have finality, the operation of rule

60(b) must receive “extremely meagre scope.” Rule 60

is to litigation what mouth-to-mouth resuscitation is

to first aid: a life-saving treatment, applicable in

desperate cases, Achieving finality and minimizing

delay and uncertainty are appropriate considerations

when acting on any rule 60(b) motion; they are prime

considerations . . . when the rights, interests, and

welfare of children in custody and adoption

proceedings are involved.

1d. at 557-558 (quotation marks, ellipses and citations omitted).

Recognizing that Mother cannot pursue any other avenue

of relief here, we conclude that Rule 60(b)(6) was an appropriate

vehicle for raising ineffective assistance of counsel in the

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circumstances of this case.”

C. we will review claims of ineffective assistance of counsel

in termination of parental rights cases to determine whether

fundamental fairness was compromised

State courts have also applied varying tests for

determining whether appointed counsel in a termination of

parental rights case was ineffective. A majority of states has

adopted the standard for ineffective assistance of counsel in

criminal cases that was announced in Strickland v. washington,

466 U.S. 668, 687 (1984): “First, the defendant must show that

counsel's performance was deficient. . . . Second, the defendant

must show that the deficient performance prejudiced the

defense.”“ See, e.g., State v. T.L., 751 N.w.2d 677, 685 (N.D.

” we note that RGB has not yet been adopted, and that this case is

distinguishable from one in which adoption has already occurred. Our

conclusion therefore does not authorize a challenge to the termination of

parental rights based on ineffective assistance of counsel in a case where

adoption of the child has already taken place.

m 1n State v. Antone, 62 Haw. 346, 615 P.2d 101 (1980), we

articulated the standard under the Hawafi constitution for reviewing

ineffective assistance of counsel claims in criminal cases as follows:

The burden of establishing ineffective assistance of

counsel rests upon the appellant. His burden is

twofold: First, the appellant must establish specific

errors or omissions of defense counsel reflecting

counsel's lack of skill, judgment or diligence.

Second, the appellant must establish that these errors

or omissions resulted in either the withdrawal or

substantial impairment of a potentially meritorious

defense.

;gp at 348-49, 615 P.2d at 104 (citations omitted); ppg Dan v. State, 76

Hawafi 423, 427, 879 P.2d 528, 532 (1994) (“no showing of ‘actual' prejudice

is required to prove ineffective assistance of counsel” in a criminal case)

(quoting Briones v. State, 74 Haw. 442, 464, 848 P.2d 966, 977 (1993)).

with regard to ineffective assistance of appellate counsel in the

criminal context, this court has held that, “[i]f . . . an appealable issue is

omitted as a result of the performance of counsel whose competence fell below

that required of attorneys in criminal cases then appellant’s counsel is

constitutionally ineffective.” Briones, 74 Haw. at 467, 848 P.2d at 978.

where appellate counsel's ineffectiveness results in the failure to timely

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2008); N.J. Div. of Youth & Family Servs. v. B.R., 929 A.2d 1034,

1038 (N.J. 2007); In re C.H., 166 P.3d 288, 290-91 (Colo. Ct.

App. 2007). Aside from cases in which prejudice is presumed,”

courts applying the Strickland standard in termination of

parental rights cases rarely find ineffectiveness. Calkins, 6 J.

App. Prac. & Process at 215.

Other jurisdictions apply the “fundamental fairness”

test announced in State ex rel. Juvenile Department of Multnomah

County v. Geist, 796 P.2d 1193, 1204 (Or. 1990), which required a

mother whose parental rights were terminated to show “not only

that her trial counsel was inadequate, but also that any

inadequacy prejudiced her cause to the extent that she was denied

a fair trial and, therefore, that the justice of the circuit

court's decision is called into serious question.” 1n declining

to apply the Strickland standard, the Q§i§p court distinguished

juvenile court proceedings from adult criminal proceedings,

noting that “[t]here simply is no compelling reason that the same

standards applied in adult criminal cases also should be applied

in juvenile cases.” 1d. at 1202; see also Baker v. Marion County

file a notice of an appeal, this court has, under certain circumstances,

“relax[ed] the deadline for filing a notice of appeal.” State v. Shinyama,

101 Hawai‘i 389, 393 1'1.6, 69 P.3d 517, 521 n.6 (2003); see also State V.

Caraballo, 62 Haw. 309, 316, 615 P.2d 91, 96 (1980) (permitting a late-filed

appeal where defendant had withdrawn his initial appeal based on counsel's

erroneous advice).

” For example, the Court of Appeals of Kansas has held that an

attorney's withdrawal mid-trial constituted a complete denial of counsel, and

therefore prejudice was presumed. 1n re Rushing, 684 P.2d 445, 450 (Kan. Ct.

App. 19B4). As discussed further, infra, failure to file a notice of appeal

in a criminal proceeding may be per se prejudicial under certain

circumstances.

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Office of Family & Children, 810 N.E.2d 1035, 1039 (1nd. 2004)

(“we conclude that transporting the structure of the criminal

law, featuring as it does the opportunity for repeated re-

examination of the original court judgment through

ineffectiveness claims and post-conviction processes, has the

potential for doing serious harm to children whose lives have by

definition already been very difficult”). we note that Mother,

in her application, also urged this court to “apply or formulate

a family court standard of the correct remedy for ‘ineffective

assistance of counsel.’”

1n the criminal context, the United States Supreme

Court has further refined the test for ineffective assistance of

counsel, where counsel has failed to file a notice of appeal.

Roe v. Flores-Ortega, 528 U.S. 470 (2000). 1n Flores-Ortega, the

defendant pleaded guilty to second-degree murder, and was

sentenced to 15 years to life in state prison. 1gp at 473-74.

Flores-Ortega was informed by the trial judge that he could file

an appeal within 60 days following sentencing, and that counsel

would be appointed to represent him on appeal if he was indigent.

ldp at 474. However, Flores-Ortega's appointed counsel failed to

file a notice of appeal, and Flores-Ortega himself was unable to

communicate with counsel during the first 90 days following

sentencing. ;gp After Flores-Ortega’s pro se attempt to file a

belated notice of appeal was rejected, he filed a federal habeas

petition alleging that his counsel's failure to file a notice of

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appeal on his behalf constituted constitutionally ineffective

assistance of counsel. 1gp The district court adopted the

Magistrate Judge’s findings and recommendations and denied

Flores-Ortega’s petition. 1gp at 475. Flores-Ortega appealed.

1gy The United States Court of Appeals for the Ninth Circuit

reversed, and certiorari was granted. ;gp at 475-76.

The United States Supreme Court held that the

Strickland test applies to claims of ineffective assistance of

counsel arising out of counsel's failure to file a notice of

appeal. 1gp at 476-77. The Court then addressed the

circumstances under which the failure to file a notice of appeal

would be considered to fall “below an objective standard of

reasonableness.” 1g. at 476-78 (quoting Strickland, 466 U.S. at

688). The Court emphasized that “a lawyer who disregards

specific instructions from the defendant to file a notice of.

appeal acts in a manner that is professionally unreasonable.”

1gp at 477. However, the Court declined to establish a bright-

line rule deeming it per se deficient to fail to “file a notice

of appeal unless the defendant specifically instructs otherwise.”

1d. at 478. Rather, the Court held that:

counsel has a constitutionally imposed duty to consult

with the defendant about an appeal when there is

reason to think either (1) that a rational defendant

would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this

particular defendant reasonably demonstrated to

counsel that he was interested in appealing.

Id. at 480.

with regard to the prejudice prong, the Court concluded

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that the “denial of the entire judicial proceeding itself,” which

resulted from counsel's failure to file a notice of appeal, was

presumptively prejudicial. lgp at 483. However, the Court held

that the Strickland standard required that “counsel's deficient

performance must actually cause the forfeiture of the defendant's

appeal.” 1d. at 484. The Court further held that:

[i]f the defendant cannot demonstrate that, but for

counsel's deficient performance, he would have

appealed, counsel's deficient performance has not

deprived him of anything, and he is not entitled to

relief.

The Court further noted that:

As with all applications of the Strickland test, the

question of whether a given defendant has made the

requisite showing will turn on the facts of a

particular case. Nonetheless, evidence that there

were nonfrivolous grounds for appeal or that the

defendant in question promptly expressed a desire to

appeal will often be highly relevant in making this

determination.

1gy at 485 (citation omitted).

Applying this analysis to the facts of Flores-Ortega's

case, the Court concluded that “the Magistrate Judge's findings

do not provide us with sufficient information to determine

whether [defense counsel] rendered constitutionally inadequate

assistance.” 1gg at 487. The Court further noted:

Assuming, arguendo, that there was a duty to consult

in this case, it is impossible to determine whether

that duty was satisfied without knowing whether

[defense counsel] advised [Flores-Ortega] about the

advantages and disadvantages of taking an appeal and

made a reasonable effort to discover his wishes.

Based on the record before us, we are unable to

determine whether [defense counsel] had a duty to

consult with [Flores-Ortega] (either because there

were potential grounds for appeal or because [Flores-

Ortega] expressed interest in appealing), whether she

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satisfied her obligations, and, if she did not,

whether [Flores-Ortega] was prejudiced thereby.

;gp at 437.

In In re A.J., 143 P.3d 1143 (Colo. Ct. App. 2006), the

Colorado Court of Appeals considered the effect of the holding in

Flores-Ortega on a claim of ineffective assistance of counsel in

a termination of parental rights case, in the context of

determining whether to accept a late-filed notice of appeal. The

mother timely communicated her decision to appeal the termination

order to her counsel, who filed an untimely notice of appeal of

the family court4s termination order. 1gp at 1149. The court

noted that the mother filed her notice of appeal just over six

weeks after the family court entered its termination order,

“within nine months after the child’s removal from the home,

[and] three months before the [expedited permanency planning

(EPP)] deadline for permanent placement of the child.” 1dp The

court noted that the statutory framework for EPP cases requires

that the child “be placed in a permanent home within twelve

months of his [or her] initial placement out of the home[,]” and

characterized the length of delay in this case as “relatively

short.” ldp

The court concluded that “counsel's failure to file a

timely notice of appeal after mother told him she wanted to

appeal the termination order amounts to ineffective assistance of

counsel.” ldp However, under Colorado law, the mother was also

required to demonstrate good cause warranting reinstatement of

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the right to appeal. 1gp Because the mother had advised her

counsel that she wished to appeal, the court concluded that she

did not contribute to the delay in filing the appeal and, under

the specific circumstances of the case, there was good cause for

extending the appeal deadline. lgp at 1150. However, the court

noted that:

if any one of the circumstances in this case were

different, we may have reached a different result. 1n

particular, we might have been inclined to dismiss the

appeal if the untimely filing of the notice of appeal

were attributable to mother's carelessness or

inaction, or if the delay had been longer or exceeded

the EPP deadline for permanent placement of the child,

Finally, some federal courts have declined to extend

the holding in Flores-Ortega to other civil contexts in which due

process requires the effective assistance of counsel. 1n

Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001), the Court of

Appeals for the First Circuit noted that counsel's incompetence

during immigration proceedings, which are civil in nature, “may

make the proceeding fundamentally unfair and give rise to a Fifth

Amendment due process objection.” 1gp at 55 (emphasis in

original). Hernandez's counsel had filed a timely notice of

appeal of Hernandez's deportation order with the Board of

1mmigration Appeals (Board) but failed to brief the issues on

appeal, resulting in the appeal being dismissed. 1Qp at 52-53.

Hernandez had the option to appeal the Board's decision, but his

counsel failed to do so, 1Qg at 53. Almost four years later,

Hernandez was issued a letter directing him to appear for

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deportation, and Hernandez then filed a petition for a writ of

habeas corpus with the district court and a motion to reopen his

case with the Board, alleging ineffective assistance of counsel.

;gp at 53.

The First Circuit noted that:

were this a criminal case, counsel's failure to comply

with a defendant's request to appeal would be treated

as prejudice ppg §g. But we are unwilling, unless

directed to do so, to incorporate into civil

deportation proceedings the whole apparatus of Sixth

Amendment precedent. Our concern in the immigration

context is not with the Sixth Amendment but with

preserving a fair opportunity to have a waiver

considered; it does not include an opportunity to tie

up deportation proceedings in knots through collateral

attacks on defects that would not plausibly have

altered the result.

1gy at 57 (citations omitted; emphasis added).

Moreover, the First Circuit noted that Hernandez “had

some duty--as a condition of a successful due process claim--to

monitor his lawyer's actions and assure that his appeal was being

pursued[,]” but did not do so. 1gp Accordingly, the First

Circuit affirmed the District Court's dismissal of Hernandez's

habeas petition. lgp

Applying these principles to Mother's case, we hold

that the right to counsel in termination of parental rights

cases, where applicable, includes the right to effective counsel.

we further hold that the proper inquiry when a claim of

ineffectiveness of counsel is raised in a termination of parental

rights case is whether the proceedings were fundamentally unfair

as a result of counsel's incompetence. Cf. Geist, 796 P.2d at

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1203 (“Mother must show, not only that her trial counsel was

inadequate, but also that any inadequacy prejudiced her cause to

the extent that she was denied a fair trial and, therefore, that

the justice of the [trial] court's decision is called into

serious question.”); Baker, 810 N.E.2d at 1041 (“where parents

whose rights were terminated upon trial claim on appeal that

their lawyer underperformed, we deem the focus of the inquiry to

be whether it appears that the parents received a fundamentally

fair trial whose facts demonstrate an accurate determination.”);

Hernandez, 238 F.3d at 57 (“Our concern in the immigration

context is not with the Sixth Amendment but with preserving a

fair opportunity to have a waiver claim considered”). The movant

bears the burden of establishing “not only that her trial counsel

was inadequate, but also that any inadequacy prejudiced her cause

to the extent that she was denied a fair trial and, therefore,

that the justice of the [trial] court's decision is called into

serious question.” ldp at 1204. Although principles developed

in assessing ineffective assistance of counsel claims in the

criminal context may be instructive, they are not dispositive in

the termination of parental rights context, _fp Hernandez, 238

F.3d at 57 (noting that “Sixth Amendment precedent is worth

consulting where counsel's performance is attacked in a

deportation proceeding, but it is not binding and should not be

blindly imported wholesale”).

we adopt a fundamental fairness test, rather than

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importing criminal law concepts directly, for several reasons,

First, the constitutional bases of the respective rights to

counsel are different. The right to counsel in the criminal

context is based on the Sixth Amendment of the United States

Constitution and Article 1, Section 14 of the HawaFi

Constitution. In contrast, the right to counsel in termination

of parental rights proceedings is based on due process. Cf.

Hernandez, 238 F.3d at 57; Anthony C. Musto, Potato, Potahto:

whether Ineffective Assistance or Due Process, An Effective Rule

is Overdue in Termination of Parental Rights Cases in Florida, 21

St. Thomas L. Rev. 231, 243 (2009) (“1t seems logical that if the

right to counsel in a particular situation arises from due

process, the issue of whether some act or omission of counsel

rendered a proceeding unfair should be deemed to be one of due

process.”); see also 1n re Doe, 99 Hawafi 522, 534, 57 P.3d 447,

459 (2002) (analyzing denial of an interpreter in a termination

of parental rights proceeding under procedural due process

principles).

Second, there are substantial differences in the

purposes of criminal as opposed to termination of parental rights

proceedings. §§§ Baker, 810 N.E.2d at 1039 (noting that “[t]he

resolution of a civil juvenile proceeding focuses on the best

interests of the child, not on guilt or innocence as in a

criminal proceeding”); Geist, 796 P.2d at 1202 (“There are

substantial differences between adult criminal cases and juvenile

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court proceedings involving children and their parents. Courts

have long recognized that the substantive standards and

procedural rules governing criminal cases are not necessarily

applicable or even desirable in juvenile court proceedings.”).

Consistent with that understanding, some of the protections that

exist for adult criminal defendants have not been fully imported

into the parental rights context. Geist, 796 P.2d at 1202

(noting that, unlike in criminal cases, under Lassiter, the right

to counsel in termination of parental rights cases is determined

on a case-by-case basis and that, under SantoskV v. Kramer, 455

U.S. 745, 768-69 (1982), the burden of proof in termination cases

is clear and convincing evidence rather than proof beyond a

reasonable doubt). Conversely, “the odds of an accurate

determination in a termination case are enhanced by the fact of

judicial involvement that is much more intensive than it is [in]

the usual criminal case.” Baker, 810 N.E.2d at 1041 (noting that

the judge “is not limited to [the parties’] presentations, and

may require more than they present and direct further

investigation, evaluations or expert testimony to assure him [or

her] that the interests of the child and the respective parties

are properly represented.” (quoting 1n re Adoption of T.M.F., 573

A.2d l035, 1042-43 (l990)).

Third, the interests implicated by criminal and

termination of parental rights cases are substantially different.

Most notably, termination of parental rights proceedings

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implicate

permanent

is absent

the interests of the child in having a prompt and

resolution of his or her custody status--a factor that

in the criminal context.” As the Supreme Court of

1ndiana noted in Baker:

1d. at 1040; see Geist,

1n the context of termination cases, extended

litigation imposes that burden on the most vulnerable

people whom the system and such cases seek to protect;

the children. As Justice Powell wrote, “There is

little that can be as detrimental to a child’s sound

development as uncertainty over whether he is to

remain in his current ‘home,’ under the care of his

parents or foster parents, especially when such

uncertainty is prolonged.” Lehman, 458 U.S. at 513-

14, 102 S.Ct. 3231. Justice Joette Katz made a

similar observation when Connecticut’s high court

decided not to permit state habeas as a vehicle for

collateral attacks on judgments of termination:

“[T]here exists, as the trial court noted in this

case, a ‘frightening possibility that a habeas

petition will negate the permanent placement of a

child whose status had presumably been in limbo for

several years.“ Consequently, the state's interest

paren patriae militates against allowing the writ.”

In re Jonathan M., 255 Conn. 208, 764 A.Zd 739, 753

(2001) (footnote omitted).

SS

To permit the children to travel from one home

to another while termination proceedings span across

the years is “incongruous and contrary to the federal

and state policy of minimizing the ‘foster care drift'

that has doomed millions of children to interim,

multiple or otherwise impermanent placement.” 1n re

Adoption of A.M.B., 812 A.Zd 659, 667 (Pa.Super.Ct.

2002). Due to the immeasurable damage a child may

suffer amidst the uncertainty that comes with such

collateral attacks, it is in the child’s best interest

and overall well being to limit the potential for

years of litigation and instability. “1t is

undisputed that children require secure, stable, long-

term, continuous relationships with their parents or

foster parents. There is little that can be as

detrimental to a child’s sound development as

uncertainty.” Lehman, 458 U.S. at 513, 102 S.Ct.

3231. \

796 P.2d at 1201 (observing that in

23

we therefore respectfully disagree with the dissent's assertion

that the best interests of the child can only be considered “after Petitioner

is given the opportunity to present her side of the case.” Dissenting Opinion

at 81

(emphasis added).

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termination proceedings, “[w]hether or not the eventual result is

termination, protracted litigation extends uncertainty in the

child[ren]’s life”); Musto, 21 Saint Thomas L. Rev. at 243-44

(“1t also appears from a policy perspective that due process is a

more fitting framework than ineffective assistance for

termination cases. . . . lt [] broadens the appropriate

considerations in a manner that can better focus courts on the

best interest of the child[ren] involved, rather than merely the

impact on the parent of counsel's acts or omissions”).

Applying these principles here, we decline to adopt the

rule adopted in Flores-Ortega, under which prejudice is presumed

when defense counsel fails to comply with a defendant's request

to file an appeal in a criminal case.” Rather, the failure of

appellate counsel to file an appeal in a termination of parental

rights case must be viewed in the broader context of whether the

family court proceeding was fundamentally unfair. The merit (or

lack thereof) of the issues that a party intends to raise on

appeal is a relevant consideration in making that determination.

Qfp Hernandez, 238 F.3d at 57 (court declines to apply Flores-

Ortega to an immigration proceeding, and notes that a party who

claims ineffective assistance of appellate counsel in that

“ However, we note that, even if the holding in Flores-ortega were

to apply in termination of parental rights cases, counsel's failure to file a

notice of appeal will only be considered per se ineffective where the party

has specifically instructed his or her counsel to file a notice of appeal.

528 U.S. at 477. Although there are references in the record here which

indirectly support an inference that Mother conveyed her desire to appeal to

Yonemori, there is nothing in the record to directly confirm that she did so.

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context must show more than “defects that would not plausibly

have altered the result.”).

D. The family court did not abuse its discretion in denying

Mother's Rule 60(b)(6) motion

1. Mother failed to establish that her pre-termination

counsel was ineffective

1n her application, Mother appears to request a new

trial on the basis of ineffective assistance of counsel in the

four-year period leading up to the family court's March 11, 2005

Termination Order. 1n her February 6, 2007 motion from which

this appeal is taken, Mother alleged that she was denied her due

process rights by:

the order Denying Mother's Motion to Reconsider Denial

of Oral Motion to Continue Trial; and Exclusion of

Exhibits Filed December 23, 2004, filed on March 7,

2005, and/or, the order Denying Mother's Motion to

Reinstate visitation Filed January 11, 2005, filed on

March 7, 2005, and/or, at the time of entry of the

Court's Findings of Fact, Conclusions of Law and Order

filed on March 11, 2005.

(Emphasis in original).

However, Mother's February 6, 2007 motion failed to

identify any specific error or omission on the part of counsel

during the specified proceedings. Similarly, Mother has failed

to point to any alleged errors apparent in the record. Moreover,

Mother has not provided this court with transcripts from the pre-

termination period or the permanent plan hearing to support her

contention that Mother's counsel was ineffective, nor has she

provided transcripts of the family court's hearing on her

February 6, 2007 motion. Contrary to Mother's assertion that her

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pre-termination counsel was ineffective, the family court

expressly noted in its March 7, 2005 written order denying

Mother's July 12, 2004 oral motion for a new attorney that “[t]he

court has seen nothing to indicate Ms. 1opa [has] not been

.effective in her representation and notes Ms. Iopa has worked

hard to assist [Mother].”

This court has held that “[t]he burden is upon

appellant in an appeal to show error by reference to matters in

the record, and he or she has the responsibility of providing an

adequate transcript.” Bettencourt v. Bettencourt, 80 HawaiU_

225, 230, 909 P.2d 553, 558 (1995) (quoting Union Building

Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682

P.2d 82, 87 (1984)) (brackets omitted); Lepere v. United Pub.

workers, Local 646, 77 Hawafi 471, 474, 887 P.2d 1029, 1032

(1995) (“Lepere, as appellant, had a duty to include the relevant

transcripts of proceedings as a part of the record on appeal.”)

(footnote omitted); see Hawafi Rules of Appellate Procedure Rule

10(b)(1)(A) (“when an appellant desires to raise any point on

appeal that requires consideration of the oral proceedings before

the court . . . appealed from, the appellant shall file . . . a

request or requests to prepare a reporter’s transcript of such

parts of the proceedings as the appellant deems necessary that

are not already on file.”). Given the family court's findings in

the record, and absent a transcript of the proceedings or other

indications in the record to suggest otherwise, the record does

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not establish that Mother's pre-termination counsel was

ineffective. Accordingly, the family court did not abuse its

discretion in denying Mother's motion with respect to the pre-

termination proceedings.

2. The family court did not abuse its discretion in

denying Mother's motion with regard to the post-

termination proceedings

The record establishes that Mother did not receive

effective assistance of counsel with regard to her appeal.

However, as we discuss below, Mother failed to establish that the

family court proceedings were fundamentally unfair. Moreover,

there was a nearly two-year delay between the March 11, 2005

order terminating custody, and Mother's filing of the Rule

60(b)(6) motion that is at issue here. A delay of that magnitude

in determining permanent custodial status has a substantial

negative impact on the interests of the child, which is a

significant factor weighing against the granting of Rule 60(b)(6)

relief. As we set forth below, Mother failed to demonstrate her

entitlement to relief in the family court, and has failed on

appeal to establish that the family court abused its discretion

in denying the motion.

RGB was initially placed in temporary foster custody in

200l. She was later returned to Mother under family supervision,

and then placed in foster custody in April, 2002. At the time of

that placement, she was 2 years and 9 months old. She

subsequently remained in the care of the same foster family

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through the permanent plan hearing.

There are several reports in the record that discuss

RGB’s status after that hearing. On August 3, 2005, DHS filed a

report to the family court in which it noted:

[RGB] has lived with her foster parents for three

years and five months and is well-adjusted and has

adapted to her environment.

[RGB] is happy and doing well in her current

placement. 1t would be in the best interest of [RGB]

if the adoption process were to be completed sooner

rather than later. However, Deputy Attorney General,

Howard Shiroma, reports that Mother is appealing the

[Termination Order]. . . . Thus, Mother's appeal to

the [c]ourt may delay the adoption process, negatively

impacting the well-being of [RGB].

On August 4, 2005, RGB's guardian ad litem filed a

report stating:

with regard to the permanency goal of adoption

of he [sic] child . . . , 1 have spoken to Carrie

Yonemori, the attorney appointed to represent Mother

in her appeal of the [c]ourt's permanency order, and

she has related that the necessary paperwork

pertaining to such appeal should be submitted to the

Supreme Court shortly. Although it is certainly not

in the child’s best interest, 1 would suppose that we

would be unable to proceed with any adoption until

such appeal is resolved.

On January 17, 2006, DHS filed a report to the family

court in which it noted that RGB “continues to do very well in

the care of foster parents, . . . whom she has resided with for

nearly four years.” DHS further noted that:

[RGB's foster parents] want to adopt [RGB] and have

been ready to proceed with the adoption process ever

since biological mother's parental rights were

terminated in March 2005. However, biological

Mother's pending appeal to the court . . . has

prevented the DHS and [RGB’s foster parents] from

proceeding with the adoption. Hence, [foster parents]

and [RGB] and the entire family are disappointed. Per

[foster mother], [RGB] continually wonders and asks

“when will she be adopted”.

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On May 23, 2006, DHS filed a report to the family

court, in which it noted that “[RGB] continue[d] in her

placement” where she “ha[d] been [] since April 4, 2002[,]” that

she “wants to remain there forever because she loves her foster

parents whom she refers to as ‘mom' and ‘dad[,]’” and that “she

wants to be adopted as soon as possible[.]”

On June 2, 2006, RGB's guardian ad litem filed a report

to the family court, stating that, “[i]n the past, foster parents

had reported [RGB] making reference to her mother,

However, for some time now, the only references made by [RGB] of

her mother are in the context of fantasized incidents.”“

As noted in section C, §pp;a, the negative effect on

children of delays and uncertainty in determining permanent

custodial arrangements has been well documented. See, e.g.,

Baker, 810 N.E.2d at 1039-41. The record here clearly

establishes such negative impacts on RGB. She has lived with

uncertainty about the status of her family for most of her life,

and wants that uncertainty to end.

At the time the family court issued its Termination

Order, RGB had been in foster custody for nearly three years.

§g§ HRS § 587-72(e) (Supp. 2004 & Supp. 2005) (requiring DHS,

with limited exception, to file a motion to set a permanent plan

” The June 2, 2006 report is the last report in the record before

the family court's September 28, 2006 hearing, after which it issued its

November 9, 2006 written order prohibiting Mother from having access to the

family court record going forward.

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hearing if “the child has been residing outside of the family

home for an aggregate of fifteen out of the most recent twenty-

two months[.]”). The effect of the additional delay that would

have been caused by granting the Rule 60(b)(6) motion was a

factor that weighed substantially in favor of denying the motion.

Cf. A.J., 143 P.3d at 1149-50 (although court allowed the filing

of an untimely direct appeal in a termination of parental rights

case, it noted that only nine months had elapsed since the child

was first removed from the home and that the outcome could have

been different “if the delay had been longer or exceeded the EPP

deadline for permanent placement of the child”). Mother failed

to establish an entitlement to relief sufficient to overcome that

factor.

First, Mother has not identified, either in her Rule

60(b)(6) motion, her brief to the 1CA, her application for

certiorari, or oral argument in this court, what errors occurred

in the permanent plan hearing that she would have challenged had

Yonemori timely appealed on her behalf. 1n view of her failure

to identify any potentially meritorious issues that could have

been raised but for Yonemori's failure to timely appeal, the

record does not establish that the proceedings were fundamentally

unfair. Qfy Hernandez, 238 F.3d at 57 (collateral attacks in

immigration proceedings based on ineffective assistance of

counsel should not be permitted based “on defects that would not

plausibly have altered the result”).

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Second, Mother's Rule 60(b)(6) motion did not

adequately establish that she did not play a role in contributing

to the delay in bringing the motion. §§§ Hayashi v. Hayashi, 4

Haw. App. 286, 290, 666 P.2d l7l, 174-75 (1983) (noting that

relief under Rule 60(b)(6) “calls for diligence by the moving

party”); gfp Hernandez, 238 F.3d at 57 (observing that “it would

seem that Hernandez had some duty--as a condition of a successful

due process claim--to monitor his lawyer's actions and assure

that his appeal was being pursued”); ApQp, 143 P.3d at 1150

(allowing the filing of an untimely direct appeal in a

termination of parental rights case, but noting that the result

could have been different “if the untimely filing of the notice

of appeal were attributable to mother's carelessness or

inaction”). Yonemori's representation of Mother was deficient,

as Yonemori conceded in her filings in the family court, and it

is Yonemori who appears to bear primary responsibility for most

of the delay that occurred after the family court appointed her

to represent Mother. However, the record does not explain why

Mother waited until March 10, 2006 before bringing Yonemori's

inaction to the attention of the family court.

Although Mother has a mental health condition,

nevertheless the record shows that Mother was of “above-average”

intelligence, and that she did not hesitate to bring perceived

defects in her counsels’ performance to the attention of the

family court. There may be good explanations for why Mother did

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not act sooner with regard to Yonemori’s failure to timely file

the appeal; however, the record does not reflect them.” 1n

seeking the extraordinary relief of setting aside the March 11,

2005 Termination Order nearly two years after it was entered, the

burden was on Mother to establish that she was not responsible

for the delay. gee Hayashi, 4 Haw. App. at 290, 666 P.2d at 174

(noting that “relief [under Rule 60(b)(6)] is extraordinary and

the movant must show that . . . the motion is made within a

reasonable time”).

Finally, we note that Mother failed to include in the

appellate record any transcripts of proceedings relevant to

determining whether the family court abused its discretion. As

noted in section 111(D)(1), §pp;a, appellants have the burden of

including in the record all transcripts relevant to their points

of error, Bettencourt, 80 Hawafi at 230, 909 P.2d at 558 (“The

burden is upon appellant in an appeal to show error by reference

to matters in the record, and he or she has the responsibility of

providing an adequate transcript.”) (brackets and citations

omitted).

” As discussed supra, “diligence by the moving party” is a threshold

requirement of a Rule 60(b)(6) motion. Hayashi, 4 Haw. App. at 290-91, 666

P.2d at 174-75. we therefore require a showing by the movant of “exceptional

circumstances” to mitigate any delay. 1gy at 291, 666 P.2d at 175. we

respectfully disagree with the dissent's assertion that, by doing so, we have

“[laid] the fault for the failure to file a timely motion for reconsideration

at the feet of Petitioner[.]” Dissenting opinion at 91. To the

contrary, we express no view on the diligence or lack thereof of Mother, but

rather observe that Mother has failed to provide any information regarding her

own understanding of what was transpiring between the issuance of the

Termination Order on March 11, 2005 and her filing of her pro se Motion for

Relief from Judgment on March 10, 2006.

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Although the proceedings in this case have lasted many

years and included a six-day permanent plan hearing, Mother did

not include any transcripts as part of the record on appeal.

Mother did not include in the record any transcripts from the

permanent plan hearing that might explain the circumstances

surrounding the court's March 11, 2005 order discharging Iopa.

Mother also did not include in the record any transcripts from

the hearings held during the period between the Termination Order

and the hearing on Mother's February 6, 2007 Rule 60(b)(6)

motion. For example, in its written order following a hearing on

April 6, 2006, the family court noted that Mother waived any

conflict of interest Yonemori had in continuing to represent

Mother; presumably, that hearing included some discussion of the

consequences of the waiver and/or about what actions were

expected to be taken subsequent to the hearing. Moreover, Mother

did not include in the record any transcripts from the

September 28, 2006 hearing on Mother's pro se Rule 60 motion,

Yonemori’s Rule 60 motion, and Yonemori's motion to withdraw.

Most notably, Mother did not include in the record a

transcript of the Apri1 24, 2007 hearing on Mother's February 6,

2007 Rule 60(b)(6) motion, which is the subject of this appeal.

Thus, we do not know what, if anything, was said concerning the

reasons for the delays that occurred after the Termination Order

was issued, or any oral comments that might have been made by the

court in explaining its ruling. The burden was on Mother to

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include in the record an adequate transcript of the proceeding

that gave rise to this appeal. _§§ Bettencourt, 80 Hawafi at

230, 909 P.2d at 558. Mother's failure to provide a transcript

is a substantial omission. State v. Hoang, 93 HawaFi 333, 334,

3 P.3d 499, 500 (“without the . . . transcript, the Intermediate

Court of Appeals did not, and this court does not, have a basis

upon which to review the point of error raised in the present

appeal.”).

For all these reasons, Mother has failed to establish

that the family court abused its discretion in denying her Rule

60(b)(6) motion.

E. The family court did not abuse its discretion in limiting

Mother's access to post-termination records

As noted above, the family court held a hearing on

September 28, 2006, following which it issued its November 9,

2006 written order, limiting Mother's access to the court records

in this case as follows:

Mother[‘s] . . . parental rights have been terminated

and due to this status and the possibility of

dissemination of these confidential records, the court

finds that future court records are not currently

available to Mother . . . ; provided however that

court records will be made available for any appellate

review of this decision.

1n her February 6, 2007 motion, Mother moved for, inter

alia, “release of all evidence or files in case,” and alleged

that the family court's November 9, 2006 limitation on her access

to the court records “[was] a direct violation of the right to

due process[.]”

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On May 8, 2007, the family court denied Mother's motion

and all relief therein requested, and Mother appealed. Mother's

October 30, 2007 opening Brief to the 1CA again alleged that

“when the trial court refused to allow [Mother] to review

‘confidential' records and files, as stated in the Motion

appealed from, this was yet another example of a deprivation of

[Mother's] due process rights to a fair trial.” The 1CA

concluded that the family court “did not err in limiting Mother's

access to the post-November 6, 2006 confidential record in this

case.” 1n re RGB, 2009 wL 953392 at *3.

Finally, in her application for a writ of certiorari,

Mother argued that “[a]s a parent’s right to file an array of 60b

[sic] motions continue for up to one year and in some cases

beyond, a[n] unfettered right to review such records during the

one year period at least should freely be given to Mother.”

Mother further argued that “a new trial must be granted as the

only appropriate remedy.””

Although not entirely clear, Mother's application

therefore appears to challenge the family court's November 9,

2006 order limiting her prospective access to the court records

in this case. Accordingly, we construe Mother's February 6, 2007

motion as a request to vacate or reconsider the family court's

" we note that Mother failed to include with her application a

statement of the facts material to our consideration of the question presented

concerning her access to records as required by HRAP Rule 40(d)(3), and her

argument may accordingly be disregarded. Nevertheless, we address the merits

of Mother's argument.

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November 9, 2006 written order limiting her prospective access to

the court records.

The family court's November 9, 2006 order limiting

Mother's access to the court records draws support from its

March 11, 2005 order terminating Mother's parental rights. Upon

the termination of parental rights, HRS § 587-73(b)(4) (1993 &

Supp. 2005 & 2006)” allows the family court to limit or restrict

the participation of unnecessary parties in subsequent

proceedings as follows:

the court shall order . . . [t]hat such further orders

as the court deems to be in the best interests of the

child, including, but not limited to, restricting or

excluding unnecessary parties from participating in

adoption or other subsequent proceedings, be

entered[.]

HRS § 587-73(b)(4).

Consistent with that power, the family court, in its

Termination Order, found that “it is in [RGB’s] best interests

that the participation of Mother and Father in subsequent

hearings be limited or restricted to appearances on any motions

for relief from this decision and order or any motions necessary

to pursue an appeal.” The family court's November 9, 2006 order

limiting Mother's access to the court records stems from the

termination of Mother's parental rights, and the family court's

finding that limitations on Mother's participation in subsequent

proceedings concerning RGB would be in RGB’s best interest, This

” HRS § 587-73(b)(4) now appears as HRS § 587-73(b)(1)(D) (Supp.

2008) .

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limitation is consistent with the powers afforded the family

court under HRS § 587-73(b)(4).

1n addition, as noted by the 1CA, Mother has failed to

identify “any documents or category of documents that she

reasonably requested access to or why she need[ed] full access,”

1n re RGB, 2009 wL 953392 at *3. and has not identified any

relevance of the post-November 9, 2006 record to her appeal.

Moreover, aside from acknowledging the length of time that has

passed since the family court's March 11, 2005 Termination Order,

we do not rely on the post-November 9, 2006 record in reaching our

holding, and Mother therefore had access to all court records that

were relevant to her appeal.

Accordingly, we hold that the family court did not abuse

its discretion in issuing its November 9, 2006 order limiting

Mother's prospective access to the court records or in denying

Mother's February 6, 2007 motion insofar as it sought to have the

court reconsider or vacate its earlier ruling.

1v. Conc1usion

For the foregoing reasons, we affirm the 1CA's May 21,

2009 judgment.

James 1reijo, for C§z

petitioner/mother-

appellant l§l_¢u.¢ n C#`\7\09‘<@1-jCL/’1"@/\

Howard H. Shiroma, l

Deputy Attorney General,

for respondent/

petitioner-appellee

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