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NOT FOR PUBLICATION ______________________________________________________________________________ NO. 24769 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I IN THE INTEREST OF JANE DOE, BORN ON NOVEMBER 27, 1991, A MINOR APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 98-05387) SUMMARY DISPOSITION ORDER Watanabe, Acting C. J., Lim and Foley, JJ.)

(By:

Father and Mother (collectively, the Parents) each appeal the October 23, 2001 order of the family court of the first circuit1 that awarded permanent custody of their daughter, born on November 27, 1991 (the Child), to the Director of the Department of Human Services (DHS). The Parents also each appeal

the December 7, 2001 order of the family court that denied their respective motions for reconsideration. After a careful review of the record and the briefs submitted by the parties, and giving due consideration to the arguments advanced and the issues raised by the parties, we resolve the Parents' points of error as follows: A. Father's Appeal. 1. Father avers that the family court clearly erred

when it found (finding of fact (FOF) 103):

1

The Honorable Lillian Ramirez-Uy, judge presiding.

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DHS had exerted reasonable and active efforts to avoid foster placement of the Child by offering Mother and Father services immediately and by continuing to offer her [(sic)] services.

Father contends that DHS prejudicially:

(1) delayed retaining

Dr. Craig Robinson (Dr. Robinson) to replace Anthony Troche (Troche) as Father's sexual abuse therapist,2 and (2) failed to facilitate the court-ordered psychological evaluation by Dr. June Ching (Dr. Ching). We disagree. DHS provided Father a

reasonable opportunity to immediately receive sexual abuse counseling from Troche, which would have consisted of psychosexual education regarding the dynamics of sexual abuse and its effects upon victims. Father chose not to attend this

program, which would have accepted him even though he was unwilling to admit he had sexually abused the Child (FOF 95).3 That Dr. Robinson was not retained as quickly as Father would have liked does not render DHS's efforts unreasonable, because DHS arranged, within one month of court order, alternative sexual abuse counseling which was carefully considerate of Father's refusal to admit. That Dr. Ching did not conduct the

psychological evaluation ordered by the court does not reflect a lack of reasonable effort on the part of DHS to provide

The family court found that Father had sexually abused the Child (findings of fact (FsOF) 13, 92 & 94; conclusion of law 8). In addition, the family court found that Mother and Father were not credible witnesses (FsOF 114 & 115, respectively). An unchallenged finding of fact is binding, and any conclusion which follows from it and is a correct statement of law is valid. Taylor-Rice v. State, 91 Hawai#i 60, 65, 979 P.2d 1086, 1091 (1999).
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NOT FOR PUBLICATION ______________________________________________________________________________ appropriate services. It was Dr. Ching who declined to accept Father's insinuation below that DHS

the case for evaluation.

somehow tainted Dr. Ching's perception of the case, and thus her willingness to participate, has no independent basis in the record. We therefore conclude there was substantial evidence to

support the family court's finding that DHS exerted reasonable and active efforts to provide appropriate services, and nothing in the record leaves us with a definite and firm conviction that a mistake was made. 623 (2001). 2. Father contends the family court clearly erred when In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616,

it found (FOF 104):
DHS has exerted reasonable and active efforts to reunify the Child with the Mother and the Father by making available parenting classes, individual therapy, couple's counseling, domestic violence programs, and sexual abuse offender treatment to address the problems and risks the Mother and Father have posed to the Child to ensure a safe family home.

Specifically, Father seems to argue that fundamental due process required DHS to provide him the opportunity to choose a congenial sexual abuse treatment program. Father does not cite, nor have

we located, any authority for the proposition that DHS must offer a variety of service providers from which a parent may select to his or her liking. Here, DHS's efforts to provide Father

appropriate sexual abuse treatment were fundamentally fair. Santosky v. Kramer, 455 U.S. 745, 754 (1982); Woodruff v. Keale, 64 Haw. 85, 100, 637 P.2d 760, 770 (1981) (noting "the natural relationship between parents and their children is protected by -3-

NOT FOR PUBLICATION ______________________________________________________________________________ the Due Process and Equal Protection clauses of the fourteenth amendment, and the ninth amendment.") It was Father who thwarted

those efforts by, inter alia, failing to attend therapy with Troche, who had agreed to treat Father without requiring an admission of sexual abuse, and refusing to even discuss the subject of sexual abuse with Dr. Robinson, his second courtappointed therapist (FOF 96). Here again, we conclude there was

substantial evidence to support the family court's finding that DHS exerted reasonable and active efforts to provide appropriate services, and nothing in the record leaves us with a definite and firm conviction that a mistake was made. at 190, 20 P.3d at 623. 3. Father next argues that the family court committed In re Doe, 95 Hawai#i

clear error when it found (FOF 106):
The social workers involved in this case treated the [P]arents fairly and serviced the family intensively for two and a half years.

Father explains that, because DHS failed to exert reasonable efforts in providing him appropriate services, "it only follows that DHS in fact failed to act fairly in its duties to Father." This argument is devoid of merit, as we have already concluded that DHS did, in fact, exert reasonable efforts in providing appropriate services to Father. 4. Father's fourth point of error is that the family

court committed clear error when it found (FOF 102):
Father cannot now nor in the reasonably foreseeable future become willing and able to provide the Child with a safe family

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home, even with the assistance of a service plan because of his unresolved domestic violence problem, his anger management problem, and his need for sexual abuse offender treatment.

We disagree.

Although Father completed the Family Peace Center's

domestic violence program, which included an anger management component, it was reported that the therapy was not successful and attempts to effect a decrease in Father's anger had been "largely thwarted." As for sex offender treatment, Father failed

to complete therapy that would have enabled him "to demonstrate skills in sex abuse prevention, victim empathy, stress management, and red flag recognition of inappropriate actions and conduct[,]" as ordered by the court. Because there was

substantial evidence to support the family court's finding and nothing in the record leaves us with a definite and firm conviction that a mistake was made, we conclude the family court did not clearly err in this respect. 190, 20 P.3d at 623. 5. Father challenges the family court's conclusions of In re Doe, 95 Hawai#i at

law 6 and 7, which we address together, and which concluded as follows:
6. [Father] is not presently willing and able to provide the Child with a safe family home, even with the assistance of a service plan. 7. It is not reasonably foreseeable that [Father] will become willing and able to provide the Child with a safe family home, even with the assistance of a service plan, within a reasonable period of time.

Father avers that, "Given DHS'[s] lack of reasonable efforts and provision of appropriate services to Father," the foregoing

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NOT FOR PUBLICATION ______________________________________________________________________________ conclusions are "clearly erroneous as a matter of law." Again,

because we have already concluded that DHS exerted reasonable efforts in providing Father with appropriate services, this argument lacks merit. Father's argument does not speak to the

issue at the hearing on permanent custody, which was, whether there exists clear and convincing evidence that Father cannot now, nor in the reasonably foreseeable future, provide the Child with a safe family home, even with the assistance of a service plan. HRS

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