Lead Opinion
Opinion of the Court by
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.
Mother’s child, RGB, was born in July 1999. RGB was taken into protective custody on March 30, 2001, after she was 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 April 2002, and has remained with the same foster family since then. Mother and RGB were subsequently involved in a series of interactions with the Department of Human Services (DHS) and proceedings before the Family Court for the Third Circuit (family 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 bapaeity 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 11, 2005.
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 Trial Court’s Refusal To Release “Confidential” Records That Appellate’s [sic] Counsel Could Not Examine But At The
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 Hawai'i Constitution provides indigent parents a right to counsel in all termination proceedings. Second, we conclude that a Hawai'i 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 63-64,
[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”.
Given those circumstances, 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, 2001, when RGB was taken into protective custody. On April 6, 2001, the family court awarded DHS temporary foster custody of RGB. On June 15, 2001, 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 13, 2004.
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.
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6. While living in the bay area of California, Mother again became pregnant.*5 Fearful that California authorities would remove her second child, she moved to Hawai'i when eight months pregnant with [RGB],
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8. Mother encountered many difficulties living in Hawai'i 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, 2001, [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.
10. [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.
11. A temporary foster custody hearing. was conducted. Mother applied for and received the services of court-appointed attorney, Cynthia Linet.
12. On April 6, 2001, 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].
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14. On June 15, 2001, ... the Court returned [RGB] to [Mother’s] care under family supervision.
15. On November 29, 2001, 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].
17. 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.
19. The Court appointed Alexander W. Thoene, Jr.[4 ] to serve as counsel for Mother. The disposition hearing was conducted on April 12, 15, and May 14, 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. Notwithstanding 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 bathe on a regular basis, and did not have adequate supervision. The Court determined that*6 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],
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22. On July 8, 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.
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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,
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25. On September 19, 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 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.
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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....
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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 home.” ...
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....
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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.
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37. On May 1, 2003, at Mother’s request, stand-by counsel, Aexander W. Thoene, Jr. withdrew and G. Kay Iopa was appointed as replacement stand-by counsel for Mother.
38. Throughout .[his proceeding, Mother has had difficulties with her attorneys. At times, she has insisted on proceeding pro se. At other tiijpes, 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 jjnd effectively present her own case. At the same |ime, she has often refused to allcjjw her court-appointed counsel to proceed op her beh'alf. For this*7 reason, the Court appointed Mother standby counsel. Mother was allowed to present her own ease 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.... 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 suspendí ] visits with Mother.
43. On August 28, 2003, visits between [RGB] and Mother again resumed....
44. During this period, there were numerous conflicts betiVeen Mother and the supervising agency ....
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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.
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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 18, 2004, the Court again suspended visits between Mother and [RGB] pending another court hearing.
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59. On April 1, 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.
*8 61. Mother has had no contact with [RGB] since March 12, 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. Unfortunatelyt,] 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.
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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.
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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 sympto-matololgy [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 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 ease, reasonable efforts were made by the DHS to make it possible for [RGB] to return to her mother’s home.
78. Mother and Father[6 ] 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)(1) and existing parental rights of Mother and Father of [RGB] are terminated,
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4. It is in [RGB’s] best interests that the participation of Mother and Father in subsequent hearings be limite^ or restricted to appearances on any motions for relief*9 from this decision and order or any motions necessary to pursue an appeal.
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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
As stated in the family court’s March 11, 2005 FsOF, “[throughout this proceeding, Mother has had difficulties with her attorneys.” Mother’s first attorney, Cynthia Lin-et, withdrew as counsel for Mother on November 30, 2001. 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 19,2002.
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 15, 2003, G. Kay Iopa (Iopa) was substituted “as counsel” for Mother, effective May 1, 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.
It appeal’s 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, Ms. Iopa will be [discharged].” In a hearing on July 12, 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 ease 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 ease 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.
*10 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 oi’der.”
C. Subsequent proceedings
Following the six-day permanency plan hearing, the family court issued its March 11, 2005 Termination Order, in which the court discharged Iopa.
There are no filings in the record from either Yonemori or Mother from March 29, 2005 to March 10, 2006.
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 plaeementf,]” 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 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 were “ready to proceed with the adoption process[.]”
On March 10, 2006, Mother filed a pro se Motion for Relief from Judgment with regard to the family court’s March 11, 2005 Termination Order, pursuant to HFCR Rule 60.
1. 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, excusable neglect, fraud, misrepresentation, professional error, misconduct and/or newly discovered evidence, I now bring this motion.
On March 13, 2006, Yonemori filed a Notice of Appeal of the Termination Order on Mother’s behalf.
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 (e) 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 ease.
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] was prevented from doing so by her attorneys.
On March 1⅜, 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 17, 2006, the first was dated September 27, 2005, and the second was dated March 10, 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.
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6. That between late March and August of this year, I have had four (4) close family members ... pass away. Therefore, I 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, Yone-mori 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 Leial-oha 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. I 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 ease.
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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 coun
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 Yonemo-ri, filed a document styled “Specifications on Rule 60 Motions.”
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 facts, and constituted purposeful misconduct.”
Also on June 2, 2006, Yonemori filed a Motion for Withdrawal and Substitution of Counsel. In Yonemori’s Declaration of Counsel in support of the motion, Yonemori asserted:
2. I am bringing this Motion for Withdrawal and Substitution of Counsel because I 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. I 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. I do not want to see [Mother] prejudiced in anyway [sic] by her waiver and I 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.”
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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. I have also spoken with him about the pending Rule 60 motion and possible appeal. It is my recommendation that the court consider appointing this individual as [Mother’s] counsel.
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 ICA 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:
Motherfs] ... 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.
Mother did not appeal the family court’s written order.
On February 6, 2007, Mother’s new counsel, James Ireijo,
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,[13 ] and/or, the Order Denying Moth*14 er’s Motion to Reinstate Visitation Filed January 11, 2005, filed on March 7, 2005,[14 ] 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 11, 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 and the court tided 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.” DHS 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:
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 [to Mother’s motion] ...
D. ICA Appeal
In her Opening Brief to the ICA, Mother, citing Mathews v. Eldridge,
In 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. In 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 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. Instead, 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).
In its April 9, 2009 Summary Disposition Order (SDO), the ICA concluded that “the [f]amily [c]ourt did not err in declining to grant Mother relief based on ineffective assistance of counsel.” In re RGB, No. 28582,
Mother fails to identify with specificity, however, at which points in the ease that she was unconstitutionally deprived of access to competent counsel. It appears from the record that Mother was represented by appointed counsel or standby consulting counsel at all hearings leading up to the Termination 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.
Id. at *2.
With respect to the post-termination time frame, the ICA noted:
[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 [fjamily [cjourt’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.
Id.
The ICA concluded by stating:
We consider, by analogy, the standard that is applied to claims of ineffective assistance of appellate counsel in criminal matters .... In this case, Mother has failed to even suggest a meritorious basis upon which counsel could have filed a motion to 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.
Id. (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 ICA 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 record in this case.
Id. at *3.
The ICA 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 13, 2009. DHS filed its response on August 28, 2009.
In her application, Mother “request[ed] 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.”
In its Objection, DHS argued that the ICA’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.
II. 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,
[sjince 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.
Id. at 291,
An “abuse of discretion occurs where the trial court has clearly exceeded
III. Discussion
In 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 Ha-wai'i 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 appointment of counsel in all proceedings involving the potential for termination of parental rights. Lassiter,
[t]he dispositive question ... is whether the three Eldridge factors,[16 ] 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.
Id. at 31,
This court has not determined whether article 1, section 5 of the Hawai'i Constitution affords parents a due process right to counsel in all tei’mination proceedings.
In Doe, 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.” Id. at 526,
Under the circumstances of Doe, 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. Id. at 526,
In In re “A” Children,
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 ICA 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.
In 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 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. See Lassiter,
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 Hawaii 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!,]” 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 ICA, she asserted that the “standard of review for a denial of a motion for post-decree relief is the abuse of discretion standard.” In her Reply Brief, Mother described the “motion herein” as one under Rule 6p(b). Because a Rule 60(b)(6) motion appears to have been the only motion for post-décree relief available to
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,
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: (1) 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 an 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 j'udgment. fhe motion shall be made ivithin 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.
(Emphasis added).
Although this court has not addressed the requirements for bringing a HFCR Rule 60(b)(6) motion, the ICA 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 advei’se party, the commanding equities of the ease, 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.
Hayashi,
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. Id. The ICA 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, Id. 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. Id. Accordingly, the ICA held that the family court did not abuse its discretion in denying Wife’s motion. Id.
Moreover, in Nakata v. Nakata,
In what the ICA construed to be a HFCR Rule 60(b) motion, id. at 55,
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. See Susan Calkins, Ineffective Assistance of Counsel in Parentah-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. See id. 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,
California allows a parent to raise ineffective assistance of counsel in a petition for a writ of habeas corpus. In re Paul W.,
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); In re Georgette,
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.” Id. at 116. The Alabama 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.
Id. (quoting Ex parte W.J.,
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 time.” Id.
In contrast, in In 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.”
If 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 eases. 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, inter*22 ests, and welfare of children in custody and adoption proceedings are involved.
Id. 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 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,
Other jurisdictions apply the “fundamental fairness” test announced in State ex rel. Juvenile Department of Multnomah County v. Geist,
In 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,
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. Id. at 476-77,
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 that the “denial of the entire judicial proceeding itself,” which resulted from counsel’s failure to file a notice of appeal, was presumptively prejudicial. Id. at 483,
[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.
Id.
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 non-frivolous grounds for appeal or that the defendant in question promptly expressed*24 a desire to appeal will often be highly relevant in making this determination.
Id. at 485,
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.” Id. at 487,
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 taldng 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 satisfied her obligations, and, if she did not, whether [Flores-Ortega] was px-ejudieed thereby.
Id. at 487,
In In re A.J.,
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.” Id. However, under Colorado law, the mother was also inquired to demonstrate good cause warranting reinstatement of the right to appeal. Id. Because the mother had advised her counsel that she wished to appeal, the court concluded that she did not conti’ibute to the delay in filing the appeal and, under the specific circumstances of the case, there was good cause for extending the appeal deadline. Id. at 1150. However, the court noted that:
if any one of the circumstances in this ease were different, we may have reached a different l’esult. In particular, we might have been inclined to dismiss the appeal if the untimely filing of the notice of appeal were attributable to mothei’’s carelessness or inaction, or if the delay had been longer or exceeded the EPP deadline for permanent placement of the child.
Id.
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. In Hernandez v. Reno,
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 per se. 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.
Id. 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. Id. Accordingly, the First Circuit affirmed the District Court’s dismissal of Hernandez’s habeas petition. Id.
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,
We adopt a fundamental fairness test, rather than 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 I, section 14 of the Hawai'i Constitution. In contrast, the right to counsel in termination of parental rights proceedings is based on due process. Cf. Hernandez,
Second, there are substantial differences in the purposes of criminal as opposed to termination of parental rights proceedings. See Baker,
Third, the interests implicated by criminal and termination of parental rights cases are substantially different. Most notably, termination of parental rights proceedings implicate the interests of the child in having a prompt and permanent resolution of his or her custody status—a factor that is absent in the criminal context.
In 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 as paren patriae militates against allowing the writ.” In re Jonathan M.,255 Conn. 208 ,764 A.2d 739 , 753 (2001) (footnote omitted).
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.” In re Adoption of A.M.B.,812 A.2d 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. “It 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 .
Id. at 1040; see Geist,
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.
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
In 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. In 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 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. Iopa [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,
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 2001. 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 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. It 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 ..., I 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, I 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”.
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
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, supra, the negative effect on children of delays and uncertainty in determining permanent custodial arrangements has been well documented. See, e.g., Baker,
At the tíme the family court issued its Termination Order, RGB had been in foster custody for nearly three years. See HRS § 587-72(e) (Supp.2004 & Supp.2005) (requiring DHS, with limited exception, to file a motion to set a permanent plan 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.,
First, Mother has not identified, either in her Rule 60(b)(6) motion, her brief to the ICA, 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. In 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. Cf. Hernandez,
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. See Hayashi v. Hayashi, 4 Haw.App. 286, 290,
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 not act sooner with regard to Yonemori’s failure to timely file the appeal; however, the
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), supra, appellants have the burden of including in the record all transcripts relevant to their points of error. Bettencourt,
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 Yo-nemori’s motion to withdraw.
Most notably, Mother did not include in the record a transcript of the April 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 include in the record an adequate transcript of the proceeding that gave rise to this appeal. See Bettencourt,
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 ease as follows:
Mother[’s] ... parental rights have been terminated and due to this status and the possibility of dissemination of these confi*31 dential 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.
In 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[.J”
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 ICA 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 ICA concluded that the family court “did not err in limiting Mother’s access to the post-November 6, 2006 confidential record in this case.” In re RGB,
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 ease. Accordingly, we construe Mother’s February 6, 2007 motion as a request to vacate or reconsider the family court’s 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)
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 limitation is consistent with the powers afforded the family court under HRS § 587—73(b)(4).
In addition, as noted by the ICA, Mother has failed to identify “any documents or category of documents that she reasonably requested access to or why she need[ed] full access,” In re RGB,
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.
IY. Conclusion
For the foregoing reasons, we affirm the ICA’s May 21, 2009 judgment.
Notes
. The Honorable Ben H. Gaddis presided.
. No transcripts of this or any other proceeding in this case were included in the record on appeal.
. 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.,
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 62,
. Thoene is referred to variously in the record as "Alexander" and "Alika.” For the puiposes of this opinion, we adopt the phrasing reflected in the family court's FsOF and appointment of counsel, and utilize the name "Alexander."
. Several of the family court's FsOF are misnum-bered, and several numbers appear more than once. The original numbering is preserved here.
. Father was defaulted from the proceedings in October 2001.
. In its Termination Order, the family court noted that it made its decision to discharge Iopa "[biased 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 17, 2004 Motion for Dismissal of Counsel in which she stated, "[a]ffiant has enough money today to secure independent counselL,]” and a February 1, 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.”
. As explained further, infra, on March 17, 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.”
. As discussed more fully in Part III(B), infra, HFCR Rule 60(b) perrqits a party, within certain limitations, to seek rqlief from a judgment or order for reasons of piistake, inadvertence, excusable neglect, newjy discovered evidence, fraud, and “any other feason justifying relief[.]”
. On June 28, 2006, -this court dismissed the appeal for lack of jurisdjction, stating:
Mother-Appellant did not file a motion for reconsideration withip twenty days after entry of the March 11, 200ij findings of fact, conclusions of law, and order, as [Hawai'i Revised Statutes (HRS)] § 5J1-54 (1993) required. Therefore, Mother-Appellant failed to perfect her right to assert an appeal under HRS § 571-54 (1993), and-there is no appealable*11 order. Absent an appealable order, we lack jurisdiction over this case.
. Although this document is file-stamped “May 33, 2006," a handwritten date of “June 2" appears above the stamped date.
. It is unclear from the record when or how Yonemori withdrew from the case.
. 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
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2. MOTHER has strongly expressed her dissatisfaction with the extent of information before the Court;
3. MOTHER wishes to bring additional witnesses, 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.
. On January 11, 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 Hawaii 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.
. 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. ¡
. In 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,
. Article 1, section 5 of the Hawai'i 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[.]”
. 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 32,
. 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. In 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.
. 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.
. In State v. Antone,
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.
Id. at 348-49,
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,
.For example, the Cpurt of Appeals of Kansas has held that an attorney’s withdrawal mid-trial constituted a complete denial of counsel, and therefore prejudice was presumed. In re Rushing,
. 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 63,
. 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.
. 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.
. As discussed supra, "diligence by the moving party” is a threshold requirement of a Rule 60(b)(6) motion. Hayashi,
. 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.
. HRS § 587-73(b)(4) now appears as HRS § 587-73(b)(l)(D) (Supp.2008).
Dissenting Opinion
Dissenting Opinion by
With Whom DUFFY, J., Joins.
By its decision today, the majority denies indigent persons access to justice in parental termination actions. Hawaii is now one of only five states that leaves the appointment of counsel for indigent parents in termination-of-parental-rights proceedings to the random method of case by case determination. See In re “A” Children,
Here, Petitioner/Mother-Appellant (Petitioner)
In light of these circumstances, I would hold (1) that the Intermediate Court of Ap
Unlike the majority, I believe it is wrong to reach the findings and conclusions in the Termination Order inasmuch as Petitioner has had no opportunity to present her side of the case on direct appeal. Accordingly, I respectfully dissent.
The “facts” and procedural history that follow are taken from the record and findings and conclusions in the Termination Order which Petitioner has been precluded from appealing, except as to those matters pertaining to her ineffective assistance of counsel claim under her Rule 60 motion.
I.
A.
Pre-Termination Proceedings
Petitioner’s involvement with Respondent/Respondent-Appellee Department of Human Services (DHS or Respondent) began on March 30, 2001, when Petitioner’s child (RGB) was taken into police protective custody after being found in the care of Petitioner’s boyfriend, who had a history of substance abuse and had been diagnosed with chronic paranoid schizophrenia with acute exacerbation. On April 6, 2001, RGB was placed in temporary foster care with DHS.
The initial hearing on the Petition was held on April 6, 2001, where Petitioner appeared with counsel Cynthia Linet, Esq. (Linet). On June 15, 2001, Petitioner stipulated to the court’s jurisdiction and the court returned the child to Petitioner under family supervision.
On November 29, 2001 and November 30, 2001, Petitioner, along with Linet, appeared at hearings where DHS requested the court to award foster custody. On November 29, 2001, the court denied DHS’s request. At that hearing, Petitioner requested permission to proceed pro se, and the court therefore granted Linet’s oral motion to withdraw as counsel.
On April 4, 2002, DHS again requested foster custody of RGB, which was awarded. On April 8, 2002, Petitioner applied for court-appointed counsel and the court appointed Alika Thoene, Esq. (Thoene). Disposition hearings were held on April 12, 2002, April 15, 2002, May 14, 2002, and June 14, 2002. At all times, Petitioner was represented by Thoene, except at the June 14, 2002 hearing, at which Petitioner did not appear, and was defaulted for that hearing only.
Following those hearings, the court found that Petitioner suffered from a mental condition which distorted her perception of the people she came in contact with, causing her to think that everyone was conspiring against her to deprive her of the child. The court further found that Petitioner’s mispercep-tions and her inability to control her emotions led her to have conflicts with people who were trying to assist her. The court also found that Petitioner’s mental disorder prevented her from applying lessons learned to adequately parent the child and, thus, the child was not provided clean or appropriate clothing, was not bathed on a regular basis, and was not adequately supervised. The
On July 8, 2002, Petitioner filed a motion to terminate Thoene as counsel and requested to proceed pro se. On August 8, 2002, the court granted Petitioner’s request, but required that Thoene act as stand-by counsel to assist Petitioner in the presentation of her case.
Over the next two years, Petitioner had visits with the child, which were often problematic. As the visitations continued to deteriorate, RGB was evaluated by psychologist Dr. John Wingert. Following the hearing on April 4, 2004, the court suspended visitation indefinitely.
B.
Termination Proceedings
The permanent custody trial was held on six separate dates between August 23, 2004 and December 13, 2004. Petitioner was present throughout the trial, along with G. Kay Iopa, Esq. (Iopa), acting as stand-by counsel.
On December 23, 2004, Iopa filed a Motion to Reconsider Denial of Oral Motion to Continue Trial. On January 11, 2005, Iopa filed a Motion to Reinstate Visitation. Both motions wei’e denied at a hearing on January 13, 2005.
On March 11, 2005, the court entered its Termination Order. Based on numerous findings regarding Petitioner’s behavior, mental condition, and ability to care for RGB, as well as the harmfulness of Petitioner’s continued visits with the child, the court concluded:
1.The State of Hawai‘i has established by clear and convincing evidence the criteria set forth in [HRS § ]587-73(a).
2. Continued attempts at reunification of [RGB] with [Petitioner] will cause hai'm to [RGB] as defined in [HRS § ]587(2)[sic].
3. It is in the best interests of [RGB] that permanent custody of the child be awarded to DHS.
C.
Court-Discharge of Petitioner’s Counsel and Subsequent Appointment of Counsel
The court’s Termination Order stated that:
[Iopa], stand-by counsel for [Petitioner], is discharged. Based on representations as to changes in her resource status, if [Petitioner] 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 [c]ourt immediately.
(Emphasis added.) At the point of discharge no counsel was substituted.
On March 29, 2005, Petitioner applied for court-appointed counsel, and counsel was appointed the same day. Yonemori, Petitioner’s new counsel, failed to file a motion for reconsideration in order to preserve Petitioner’s right to appeal the permanent custody ruling, as was required under HRS § 571-54 at that time.
D.
Post-Termination Proceedings
1.
2005 Proceedings
While the majority states that “[t]here are no filings in the recor'd from either Yonemori or Petitioner from March 29, 2005 to March 10, 2006,” majority opinion at 10,
Additionally, the record shows that between March and August of 2005, Yonemori recounted that several matters occurred that delayed her filing of Petitioner’s Notice of Appeal:
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.
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6. That between March and August of this year [2005], I have had four (U) close family members ... pass away. Therefore, I 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 [Petitioner], ivho is understandably quite anxious about this case.
(Emphases added.) This was stated in Yone-mori’s declaration of counsel, dated September 27, 2005.
The record hlso reflésts that Yonemori attempted to file a Notice of Appeal as she had represented she would to the guardian ad litem. On September 30, 2005, Yonemori attempted to file a Notice of Appeal. However, Yonemori explained that the Notice of Appeal was rejected by the clerk of court, and cited several events occurring in October and November 2005:
2. That on or about September 30, 2005[] I filed a Notice of Appeal in the ease herein.
3. That sometime in October, I ivas notified by [a] Family Court Clerk [] 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 cheeked my court jacket at the Circuit Court on a weekly basis. I 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 [sic] 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.
(Emphases added.) This was set forth in Yonemori’s declaration of counsel dated March 10, 2006.
2.
2006 Proceedings
A report from RGB’s guardian ad litem dated January 26, 2006, stated that “[the guardian ad litem] was able to speak very briefly with [Yonemori]” and Yonemori had related to the guardian ad litem that “[Petitioner] ha[d] been coming to [Yonemori’s] office every week and that the appeal ‘[was] on’.”
On June 2, 2006, Yonemori filed a Motion for Withdrawal and Substitution of Counsel. In support of the motion, Yonemori stated in her Declaration of Counsel that she believed a legal conflict existed with her continued representation of Petitioner due to Petitioner’s ineffective assistance of counsel claim:
2. I am bringing this Motion for Withdrawal and Substitution of Counsel because I believe that a legal conflict exists with my continued representation of [Petitioner],
3. [Petitioner’s] Rule 60 motion alleges in part ineffective assistance of counsel. I am one of the three attorneys who may not have effectively assisted [Petitioner],
4. [Petitioner] verbally executed a waiver of conflict with me at the last court hearing.
5. I do not want to see [Petitioner] prejudiced in anyway [sic] by her waiver and I have spoken to her about the importance of preserving all possible grounds of appeal. [Petitioner] stated that it was not her intent that this waiver be “permanent.”
(Emphases added.) In support of her motion for withdrawal, Yonemori indicated that she could not devote time to the case for periods in July, November, and December 2006 and that she was also anticipating a jury trial in early fall of that year:
8.I have just come through a difficidt period and have not had sufficient time to devote to [Petitoner’s] case and to educate myself areas [sic] of law (trust, discrimination, poverty, etc.), which may be important in the Rule 60 motion and possible appeal. [Petitioner] also requires an attorney who will meet with her on a frequent and prolonged basis. I will not be here for two weeks in early July and also for two week periods in October and December. I also anticipate that I will have a jury trial in early fall. Therefore, I am concerned that [Petitioner] would not have accessibility to my legal counsel during these numerous time periods.
(Emphases added.) Yonemori further declared that she “firmly believed” in Petitioner’s arguments and asked the court to “appoint[] a competent and knowledgeable attorney” to the case:
9. I have gone through voluminous files and spoken with [Petitioner] on a number of occasions, as well as done research, and firmly believe in the various issues that she has brought up. I do not want to see her rights jeopardized or further compromised in any way and feel that she should be appointed a competent and knowledgeable attorney who will work closely with her and strenuously pursue this case.
10. [Petitioner] is in contact with an attorney (in California, but also still actively licensed in Hawai'i) who has excellent foresight and understanding about this case. I have also spoken with him about the pending Rule 60 motion and possible appeal. It is my recommendation that the court consider appointing this individual as [Petitioner’s] counsel.
(Emphases added.)
On June 2, 2006, Yonemori also filed a “Specifications on Rule 60 Motions,” which asserted that Petitioner had verbally agreed to consolidate the two previously-filed Rule 60 motions and provided arguments in support of the claim for relief. Yonemori also admitted that her “failure to file a timely appeal and meet with [Petitioner] in 2005, ha[dj unfortunately delayed the resolution of this matter.”
After a hearing held on June 2, 2006, the court issued an order on June 26, 2006, finding that “due to [Petitioner’s direct] appeal, this court lacks jurisdiction to act on her Rule 60(b) motion and motion for withdrawal and substitution of counsel[.]” Therefore, the court “[held] in abeyance any ruling on [Petitioner’s] Rule 60(b) motion or motion for withdrawal and substitution unless moved on;
On June 28, 2006, this court dismissed Petitioner’s direct appeal for lack of jurisdiction pursuant to HRS § 571-54, stating:
[Petitioner] did not file a motion for reconsideration within twenty days after entry of the [Termination Order], as [HRS] § 571-54[] required. Therefore, [Petitioner] failed to perfect her right to assert an appeal under HRS § 571—54[ ], and there is no appealable order. Absent an appealable order, we lack jurisdiction over this ease.
(Emphasis added.)
Subsequently, on September 28, 2006, the court orally denied Petitioner’s Rule 60 motions and Yonemori’s motion to withdraw. On October 17, 2006, Petitioner, acting pro se, attempted to appeal the court’s denial of these motions. On November 9, 2006, the court issued its written order denying Petitioner’s Rule 60 motions and Yonemori’s motion to withdraw as counsel, concluding, with respect to Petitioner’s March 15, 2006 motion, “that it was not timely filed filed [sic] under Hawaii law,” and with respect to Petitioner’s pro se Rule 60 motion filed on March 10, 2006, that
(1) the motion only requests general relief and Rule 60(b) requires particularity ...; (2) the motion fails to provide any new evidence to support a basis for relief under [HPCR Rule 60(b) ]; (3) as to the relief sought, the court afforded [Petitioner] extensive time at trial to present evidence to address all of the issues ...; (3) [sic] the court appointed legal counsels to assist [Petitioner] to the extent she was willing to work with the legal counsels appointed; (4) [HFCR Rule 6] does not permit the court to extend or enlarge the time within ivhich 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 had been long outstanding causing delay in the final resolution on the case and this matter-needs to be put to rest[.]
(Emphases added.) On January 17, 2007, the ICA dismissed Petitioner’s appeal for lack of jurisdiction under HRS § 571-54, “because [the court] ha[d] not reduced the September 28, 2006 oral announcement to an appealable written order.”
On February 6, 2007, Petitioner filed the Rule 60 Motion, from which this appeal was taken. On April 24, 2007, the court orally denied this motion, and filed its order on May 8, 2007. Petitioner filed a Notice of Appeal from the May 8, 2007 order on June 7, 2007.
E.
The ICA issued its SDO on April 9, 2009. The ICA stated that the Termination Order was not before it because Petitioner had failed to file the motion for reconsideration necessary to perfect an appeal from that order:
From [Petitioner’s] point-of-view, this appeal concerns the termination of her parental rights with respect to [RGB], who was born in July of 1999. [Petitioner’s] parental rights were terminated in the [e]ourt’s March 11, 2005 [Termination Order], However; the Termination Order is not before the court on this appeal. On June 28, 2006, in S.Ct. No. 27814, the Hawai'i Supreme Court entered an order dismissing [Petitioner’s] appeal from the Termination Order, which stated:
The [Termination Order] was not, by itself, an appealable final order under HRS § 571-54. (1993).... [Petitioner] did not file a motion for reconsideration within twenty days after entry of the [Termination Order], as HRS § 571-54 (1993) required. Therefore, [Petitioner] failed to perfect her right to assert an appeal under HRS § 571-54 (1993), and there is no appealable order. Absent an appealable order, we lack jurisdiction over this case[.]
In the Interest of RGB, a Minor, No. 28582, 120 Hawai’i 282,
The ICA recognized that Petitioner had sought relief from the court’s May 8, 2007 Order Denying Relief, and that Petitioner raised as one of the points of error on appeal
1. [Petitioner] was denied her due process rights to competent counsel; and
2. [The court] erred when it refused to allow [Petitioner] to review certain “confidential” records and files in this case.
Id. (emphasis added). The ICA decided Petitioner’s arguments on their merits “[notwithstanding DHS’s argument that [Petitioner’s Rule 60 Motion] was untimely and subject to dismissal].]” Id.,
II.
As to the first point of error, the ICA concluded that “[Petitioner] fail[ed] to identify with specificity [ ] at which points in the case that she was unconstitutionally deprived of access to competent counsel[,]” id., and “[i]t appears from the record that [Petitioner] was represented by appointed counsel or standby consulting counsel at all hearings leading up to the Termination Order[,]” id. Specifically with regard to the post-termination time frame, the ICA noted that it was “troubled by the impact of the [Termination Order’s] immediate discharge of [Petitioner’s] standby attorney ..., particularly in light of [the court’s] assessment of [Petitioner’s] mental health status,” id., and that, “[although new counsel apparently was appointed on the same day that [Petitioner] finally got her application in to the court, [counsel] failed to preserve [Petitioner’s] rights to challenge the Termination Order by failing to immediately file a motion for reconsideration],]” id. (emphasis in original).
Despite recognizing that “[counsel] herself later described her performance as falling below the level of competence required to protect [Petitioner’s] rights[,]” id., the ICA rejected Petitioner’s claim because “[Petitioner] ha[d] not identified ... a single ‘ap-pealable issue’ that could have been raised had counsel preserved her rights to an appeal from the Termination Order[,]” id. Therefore, applying by analogy the standard for ineffective assistance used in criminal matters, the ICA concluded that “[Petitioner] has failed to even suggest a meritorious basis upon which counsel could have filed a motion to reconsider and could have raised on appeal from the Termination Order[,]” and thus, “[the court] did not err in declining to grant [Petitioner] relief based on ineffective assistance of counsel.” Id. The ICA concluded that “[the court] did not err in limiting [Petitioner’s] access to the post-November 6, 2006 confidential record in this ease.” Id. at *3. Based on the foregoing, the ICA affirmed the court’s May 8, 2007 Order Denying Relief. On August 13, 2009, Petitioner filed a petition for writ of certiorari (Application).
III.
Petitioner presented two questions in her Application:
[1] Whether the [ICA’s] “borrowing” of criminal matters analogy to apply to family court claims of ineffective counsel is authorized by law and meets constitutional standards?
[2] Whether the ICA [sic] upholding of the trial court’s refusal to release “confidential” records that appellate’s counsel could not examine but at the same time requiring counsel to “identify any prejudice stemming from this limitation” meets fair disclosure standards?
In my view as to Question 1, the ICA gravely erred (1) in failing to hold that Yone-mori was ineffective because she did not file the motion for reconsideration and (2) in failing to hold that Petitioner should be allowed to perfect her appeal because of such ineffectiveness.
IV.
Petitioner’s Rule 60 Motion from which this appeal was taken has been subsequently treated by the parties, and apparently by the court and the ICA, as a motion for relief from judgment under HFCR Rule 60(b). HPCR Rule 60(b) provides, in relevant 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: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered*39 evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an 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), (¾), and (3) not more than one year after the judgment, order, or proceedings was entered or taken.
(Emphasis added.)
The central argument presented in Petitioner’s Motion, as well as on appeal, appears to be that she was denied due process due to ineffective assistance of counsel. Petitioner’s claim could only fall under HFCR Rule 60(b)(6), inasmuch as none of the other provisions would encompass a claim of ineffective assistance. The ICA has characterized HPCR Rule 60(b)(6) as follows:
Rule 60(b)(6) permits the trial court in its sound discretion to relieve a patty from a final judgment. Such relief is extraordinary and 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 [6 ]
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 genera] rule favoring finality of actions, the cou-rt 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.
Hayashi,
A.
In support of Petitioner’s Rule 60(b) motion, the declaration of counsel dated January 24, 2007, stated that “[Petitioner] was not afforded competent legal counsel and was therefore denied her constitutionally protected [right to] due process and equal protection of the laws under the Hawai'i ([a]rticle I, [s]ection 5), and [the] United States of
As stated above, following the April 24, 2007 hearing, the court issued an order denying the Rule 60(b) Motion. Although the court did not indicate that it was treating the Rule 60(b) Motion as one for relief under HFCR Rule 60(b)(6), the court addressed Petitioner’s ineffective assistance argument on the merits, concluding that the record reflected that both judges involved in the case made “great effort[s]” to ensure that Petitioner was represented throughout the proceedings.
As to [Petitioner’s] claim that [Petitioner] lacked representation, the record clearly reflects that both [j]udges involved in this ease made great effort to have [Petitioner] represented throughout the proceedings. The court accommodated [Petitioner] when she requested to have her counsel discharged and had standby counsel appointed to assist [Petitioner] throughout the case, all of which is reflected in the court’s prior ruling contained in it’s [sic] Findings of Fact, Conclusions of Law and Order filed March 11, 2005[.]
On appeal from that order, Petitioner argued that she “was denied her right to competent counsel in violation of her constitutional rights to due process of law expressed ... in [a]rticle I, [s]ection 5 Hawaii [constitutional rights [sic][,]” and stated that the “standard of review for a denial of a motion for post-decree relief is the abuse of discre-üon standard.” (Emphases added.) The only provision in the HFCR which would allow a “motion for post-decree relief’ based upon denial of the right to counsel is HFCR Rule 60(b)(6).
The ICA opted to “consider the substance of [Petitioner’s] arguments on this appeal[,]” “[n]otwithstanding DHS’s argument that [Petitioner’s] February 6, 2007 Motion for Relief was untimely and subject to dismissal.” RGB,
Consistent with the ICA’s ruling on the merits, DHS, in its Response to the Application, characterized Petitioner’s motion “from which this appeal was taken” as one under HFCR Rule 60(b). The DHS in its Response proceeded to argue that the ICA’s decision on the merits was correct, without contending that Petitioner’s Motion from which the appeal was taken was untimely under HFCR Rule 60(b), and thus, apparently abandoned that argument.
B.
1.
In order for Petitioner’s Rule 60(b) Motion to be properly considered under HFCR Rule 60(b)(6), it must meet the requirements of Hayashi. First, as set forth supra, the motion must be “based on some reason other than those specifically stated in clauses 60(b)(1) through (5)[.]” Hayashi,
Second, the “reason urged” must be “such as to justify the relief[.]” Id. As explained further infra, the circumstances set forth herein present “exceptional circumstances justifying relief[,]” id. at 290,
3.
Finally, the motion must be “made within a reasonable time[.]” Hayashi,
a.
Before the Termination Order
2004. Proceedings
On September 17, 2004, Petitioner filed pro se, a Motion for Dismissal of Counsel and Continuance of September 20, 2004 Hearing and to Grant Continuance to Submit Witness Letters. In that motion, Petitioner alleged, inter alia, that (1) “[Petitioner has] been seeking new counsel, that [sic] has slowed my ability to bring in all needed witnesses and letters”; (2) “[a]ssigned counsel, [Iopa], has told me repeatedly ... that ‘it is beyond [the] scope of [her] duties as standby counsel’ to help locate, contact, or interview witnesses”; (3) “[a]ffiant has enough money today to secure independent counsel”; (4) “[a]f-fiant compels the court to note that [Iopa], and counsel preceding assigned by the court, have neglected proper counsel or representation”; (5) “[l]aek of [e]ffective counsel has slowed the progress of this case”; (6) “I pray the court will allow modification, and dismissal of this lawyer, so new counsel can work with me more effectively, to continue this
Despite having denied Petitioner’s previous request to dismiss Iopa as counsel for the termination hearing based on Petitioner’s allegations that (1) Iopa was ineffective and (2) Petitioner had the resources to secure her own attorney, the court sua sponte concluded in its March 11, 2005 Termination Order that “Iopa ... is discharged. Based on representations as to changes in her resource status, if [Petitioner] 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 [c]ourt immediately.” Thus, the court unilaterally and sua sponte discharged Iopa without any indication that new counsel had been substituted to take on the ease at the point that Iopa was discharged. As previously noted, on March 29, 2005, Petitioner filed her application for court-appointed counsel, which was granted, appointing Yonemori.
b.
After the Termination Order
2005 Proceedings
As noted previously, the record reflects that Yonemori attempted to file Petitioner’s Notice of Appeal in 2005. Yonemori stated that she “was unaware that a Notice of Appeal had not been filed in the ease herein” and she “had four (4) close family members ... pass away [and therefore may have been preoccupied and not as vigilant about case details.” Indeed, Yonemori declared that “the delay in filing the Notice of Appeal was in no way caused by the [Petitioner.]” (Emphasis added.) To recount further, Yo-nemori stated on the record that “on or about September 30, 2005[, Yonemori] filed a Notice of Appeal in the case[,]” but that “sometime in October [2005], [Yonemori] was notified ... that [her] cover page was in error,” that she “did not realize that the documents were returned to [her] via [her] Family Court jacket until late November[,]” “[her] close friend ... passed away in late November and [Yonemori] left ... for the mainland[,]” and for these reasons, she “completely forgot about making the appropriate corrections for this case.” Again, Yonemori admitted that “the delays in filing all papers in this case [were] due to [her] irresponsibility and [were] in no way caused by the [Petitioner], who [was] understandably quite anxious about this case.” (Emphasis added.)
2006 Proceedings
As noted above, on March 10, 2006, Petitioner, acting pro se, filed a HFCR Rule 60 motion seeking relief from the March 11, 2005 judgment, alleging that “[cjounsel assigned by this court remains ineffective to bring this matter to justicef.]” A few days later, on March 13, 2006, Petitioner, represented by Yonemori, filed a Notice of Appeal, appealing from the March 11, 2005 Order, Two days later, on March 15, 2006, Petitioner, represented by Yonemori, filed another Motion for Relief from the March 11, 2005 Order pursuant to HFCR Rule 60(1), (2), and (3).
As stated above, on June 2, 2006, Yonemo-ri filed the “Specifications on Rule 60 Motions,” noting that Petitioner had agreed to consolidate the two Rule 60 motions, and alleging, inter alia, that “[Petitioner’s] case may have been [] prejudiced by ineffective assistance of counsel[,]” that Yonemori “fail[ed] to file a timely appeal and meet with [Petitioner] in 2005”; on that same day, Yo-nemori filed a Motion for Withdrawal and Substitution of Counsel, alleging, inter alia, that she had “not had sufficient time to devote to [Petitioner’s] case and to educate [her]self [on the] areas of law[,]” and due to various commitments, “[Petitioner] would not have accessibility to [her as] legal counsel[.]” Yonemori concluded that Petitioner “should be appointed a competent and knowledgeable attorney[.]”
Also as noted before, on June 26, 2006, “due to [Petitioner’s] current appeal,” the court held rulings in abeyance on “[Petitioner’s] Rule 60(b) motion and motion for withdrawal and substitution of eounsel[.]”
c.
The record in this case, recounted above, reveals that Petitioner consistently made efforts to assert her rights, inter alia, to effective assistance of counsel, and that any lack of diligence was, by court-appointed appellate counsel’s own admission, on the part of Yonemori. See Lowther,
C.
Furthermore, according to the Hayashi court, “[w]hat 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.”
D.
Based on the foregoing, the ICA did not gravely err in concluding that Petitioner’s Rule 60 Motion may be considered a motion made within the meaning of HFCR Rule 60(b)(6). Petitioner satisfied the three requirements set forth in Hayashi, and therefore it is appropriate to address the merits of Petitioner’s arguments.
V.
Petitioner’s first argument is essentially that she was denied effective assistance of counsel both during and after the termination proceedings. The threshold issues in determining whether Petitioner’s due process rights were violated are (1) whether there is a due process right to counsel in termination proceedings and, if so, (2) the standard of effectiveness to be applied.
A.
With respect to the first threshold issue, the Supreme Court in Lassiter has not mandated counsel in termination proceedings as a due process right under the United States Constitution. In Lassiter, the Supreme Court, by a 5-4 majority, determined that an absolute right to counsel exists only where the indigent “may be deprived of his [or her] physical liberty.”
Starting from that proposition, the majority discussed at length the importance of the interests at stake in a termination proceeding:
This Court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to the companionship, care, custody and management of his or her children is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection. Here the State has sought not simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of deprivation. A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore[,] a commanding one.
Since the State has an ui'gent interest in the welfare of the child, it shares the parent’s interest in an accurate and just decision. For this reason, the State may share the indigent parent’s interest in the availability of appointed counsel. If, as our adversary system presupposes, accurate and just results are most likely to be obtained through the equal contest of opposed interests, the State’s interest in the child’s welfare may perhaps best be served by a hearing in which both the parent and the State acting for the child are represented by counsel, without whom the contest of interests may become unwholesomely unequal. North Carolina itself acknowledges as much by providing that where a parent files a written answer to a termination petition, the State must supply a lawyer to represent the child.
The State’s interests, however, clearly diverge from the parent’s insofar as the State wishes the termination decision to be made as economically as possible and thus wants to avoid both the expense of appointed counsel and the cost of the lengthened proceedings his presence may cause. But though the State’s pecuniary interest is legitimate, it is hardly significant enough to overcome private interests as important as those here, particularly in light of the concession in the respondent’s brief that the potential costs of appointed counsel in termination proceedings is [sic] admittedly de minimis compared to the costs in all criminal actions.
Finally, consideration must be given to the risk that a parent will be erroneously deprived of his or her child because the parent is not represented by counsel.
Id. at 27-29,
The Supreme Court summarized its analysis of the Eldridge factors as applied to termination proceedings as follows:
The dispositive question, which must now be addressed, is whether the three El-dridge 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. To summarize the above discussion of the El-dridge factors: the parent’s interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and,*45 in some but not all eases, has a possibly stronger interest in informal procedures; and the complexity of the 'proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent’s rights insup-portably high.
Id. at 31,
our Constitution imposes on the States the standards necessary to ensure that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but also in dependency and neglect proceedings as well. Most significantly, SS States and the District of Columbia provide statutorily for the appointment of counsel in termination cases. The Cowrt’s opinion today in no way implies that the standards increasingly urged by informed public opinion and now widely followed by the States are other than enlightened and wise.
Id. at 33-34,
B.
This court has not previously decided whether there is a due process right to counsel in termination proceedings. However, the ICA has, with some reservation, employed the approach adopted in Lassiter for determining whether court-appointed counsel must be provided to indigent parents in a termination ease. See “A” Children,
1.
Applying the standard set forth in Lassiter in D.W., the ICA rejected the Mother’s argument that she “was denied her due process right to full representation of counsel[,]” because “consulting counsel had limited powers and duties.”
2.
Subsequently, in “A” Children, the ICA addressed at length the question of whether a right to counsel attaches in termination proceedings. Initially, the ICA noted that “[t]he Hawai'i Supreme Court has affirmed that ‘independent of the federal constitution, parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of article [I], section 5 of the Hawai'i Constitution.’”
a.
In that connection, HRS § 587-34(a) (1993) provides that
[t]he 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.
(Emphases added.) As recognized by the ICA, “Hawaii thus remains one of only a handful of states that does not, by statute or case law, guarantee indigent parents a right to appointed counsel, at least at the stage of a child-protective proceeding at which parents are threatened with the prolonged and/or indefinite deprivation of custody of their children.”
Tracing the history of the case law on this subject, the ICA noted that “[p]rior to 1981, the overwhelming majority of state and federal courts that had addressed the issue held that constitutional due process required that indigent parents be provided with court-appointed counsel in termination-of-parental-rights and prolonged-deprivation-of-custody cases.” Id. at 46,
b.
Applying Lassiter to the facts of “A” Children, the ICA “conclude[d], in light of the record, that [Father] was denied his constitutional right to due process when he was not provided with counsel until sixteen days prior to trial.” Id. Because the ICA in that case based its decision on the specific facts of the Father’s case, it declined to explicitly “decide in this case whether to join the vast majority of states that require, as a bright-line rule, that counsel be appointed for indigent parents in all termination-of-parental-rights cases.” Id. at 60,
places an even heavier burden on the tidal court, which will be required to determine in advance what difference legal representation might make. A trial judge will be obligated to examine the State’s documentary and testimonial evidence well before the hearing so as to reach an informed decision about the need for counsel in time to allow preparation of the parent’s case.
VI.
A.
However, this court has “affirm[ed], independent of the federal constitution, that parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of article [I], section 5 of the Hawai'i Constitution.” Doe,
[p]arental rights guaranteed under the Ha-wai'i Constitution would mean little if parents were deprived of the custody of their children without a fair hearing. Indeed, parents have a fundamental liberty interest in the care, custody, and management of their children and the state may not deprive a person of his or her liberty interest without providing a fair procedure for the deprivation. Furthermore, the Supreme Court has said that parental rights cannot be denied without an opportunity for them to be heard at a meaningful time and in a meaningful manner-.
Id. (first emphasis added) (second emphasis in original) (quotation marks, citations, and brackets omitted). This court determined in Doe that an opportunity to be heard in “a meaningful manner” included the right to an interpreter “Where [] parental rights are substantially affected[,]” id. at 534,
In light of the constitutionally protected liberty interest at stake in a termination of parental rights proceeding, this court should hold, consistent with the great majority of states, that indigent parents are guaranteed the right to court-appointed counsel in termination proceedings under the due process clause in article I, section 5 of the Hawai'i Constitution.
B.
Even assuming the balancing test in Lassi-ter were appropriate, weighing the Eldridge factors on a case-by-ease basis will always come out in favor of appointing counsel under the Hawai'i Constitution. As Lassiter recognized, “a parent’s desire for and right to the ... custody ... of his or her children is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection!,]” and, therefore, “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is ... a commanding one.”
As for the State’s interest, the Lassiter court indicated that the State’s interests actually weighed largely in favor of appointing counsel, stating that “the State has an urgent interest in the welfare of the child,” and thus, “it shares the parent’s interest in an accurate and just decision.” Id. The Lassiter court recognized that “[i]f, as our adversary system presupposes, accurate and just results are most likely to be obtained through the equal contest of opposed interests, the State’s interest in the child’s welfare may perhaps best be served by a hearing in which both the parent and the State acting for the child are represented by counsel, without whom the contest of interests may become unwhole-somely unequal.” Id. at 28,
The final consideration in the balancing test is “the risk that a parent will be erroneously deprived of his or her child because the parent is not represented by counsel.” Id. Contrary to the Lassiter court’s conclusion that the risk may be determined on a case-
C.
Other courts have similarly rejected Lassiter’s “case by ease” approach on state constitutional grounds. In M.E.K. v. R.L.K.,
[i]n the area of termination of parental rights, the Florida due process clause provides higher due process standards than the federal due process clause. Under the federal provision, Lassiter does not require appointment of counsel in every case. It only requires a case-by-case determination. But under the state due process clause, [Florida case law] requires appointment of counsel in “proceedings involving the permanent termination of parental rights to a child.”
Id. (emphasis added).
Similarly, in Matter of K.L.J.,
As for the State’s interest, the Alaska Supreme Court determined that “[a]ppointment of counsel will make the fact-finding process more accurate, thereby furthering the state’s interest in terminating the rights of parents who do in fact neglect or abandon their children[,]” and “[t]he state’s interest in its citizens receiving a just determination on such a fundamental issue cannot be open to question.” Id. at 280 (emphasis in original). The K.L.J. court conceded “the state undoubtedly has a legitimate interest in avoiding the cost of appointed counsel and its consequent lengthening of judicial procedures[,j” but agreed with Lassiter that “ ‘though the State’s pecuniary interest is legitimate, it is hardly significant enough to overcome private interests as important as those here[.]’ ” Id. (quoting Lassiter,
Regarding the third factor, “the risk that a parent will be erroneously deprived of his or her right[,j” that court reasoned:
[ajlthough the legal issues in a given case may not be complex, the crucial determination of what will be best for the child can be an exceedingly difficult one as it requires a delicate process of balancing many complex and competing considerations that are unique to every case. A parent who is without the aid of counsel in marshalling and presenting the arguments in his favor will be at a decided and frequently decisive disadvantage which becomes even more apparent when one considers the emotional nature of child custody disputes, and the fact that all of the principals are likely to be distraught.
Id. (emphasis added).
In rejecting the Lassiter approach, that court agreed with Justice Blackmun’s dissent in Lassiter that “the due process balancing in the abstract favors a bright line rule where ‘the private interest is weighty, the procedure devised by the state fraught with risks of error, and the countervailing governmen
First, as Justice Blackmun illustrated, the case-by-case approach adopted by the majority does not lend itself practically to judicial review. The transcript of a termination proceeding alone will not be disposi-tive of whether an unrepresented indigent was disadvantaged. The transcript will not show whether the indigent litigant had adequate discovery or access to legal resources necessary for constructing a defense. Consequently, the reviewing court must expand its analysis into a “cumbersome and costly,” time-consuming investigation of the entire proceeding. Since the case-by-case approach involves a constitutional inquiry, “it necessarily will result in increased federal interference in state proceedings.” A case-by-case approach is also time consuming and burdensome on the trial court. Not only must it determine in advance the need for counsel, it must develop pretrial procedures and standards in order to determine properly the need for counsel. There is no guarantee that these standards mil produce equitable decisions in every case. Additionally, it will not always be possible for the trial court to predict accurately, in advance of the proceedings, ivhat facts will be disputed, the character of cross-examination, or the testimony of various witnesses. These factors increase the possibility that appointment of counsel will be denied erroneously by the trial court Because of the procedural delays encountered in litigation of appeals, the parent’s rights could be terminated erroneously for an extended period of time. The parent also would be denied the custody of his or her children during this period. An absolute right to counsel would, avoid any erroneous denial of appointment of counsel and would eliminate the need for cumbersome and time-consuming standards, while 'preserving the right to family integrity.
Id. (quoting Note, Lassiter v. Department of Social Services: A New Interest Balancing Test for Indigent Civil Litigants, 32 Cath. U.L.Rev. 261, 282-83 (1982)) (ellipsis omitted) (emphases added).
D.
Both M.E.K. and K.L.J. echo the sound determination that has been made by almost every state, either in the legislature or by the courts, that a right to counsel should inhere in the context of parental termination proceedings. See, e.g., In re J.A.H.,
E.
The majority asserts that (1) “[b]ecause the family court properly determined that [Petitioner] had a right to counsel under the United States Constitution, we decline to reach the question of whether the Hawaii Constitution provides indigent parents a right to counsel in all termination proceedings,” majority opinion at 18,
First, these assertions ignore the fact that parents, such as Petitioner, have a constitutional right to the “care, custody, and control of their childrent,]” under the due process clause of article I, section 5 of the Hawaii Constitution. Doe,
Second, the majority’s assertion that “the determination of what protections the Hawaii Constitution provides to indigent parents is not properly before us” is incorrect inasmuch as the majority opinion establishes the standard of ineffective assistance of counsel in parental terminations proceedings. This court has recognized that the right to effective assistance of counsel is protected under the Hawaii Constitution. See State v. Montalbo,
VII.
A.
Having determined that article I, section 5, of the Hawai'i Constitution encompasses a right to counsel at termination proceedings, the question arises as to the standard of effectiveness to be applied. This court has stated that the right to counsel “cannot be satisfied by mere formal appointment, for the assistance of counsel guaranteed by the United States and Hawai'i Constitutions is satisfied only when such assistance is effective.” Smith,
B.
The liberty interest of a parent in the care, custody and control of his children is as fundamental as the interest of a criminal defendant in personal liberty, and the deprivation of that parental interest, in fact, may be more “grievous.” As Justice Stevens stated:
A woman’s misconduct may cause the State to take formal steps to deprive her of her liberty. The State may incarcerate her for a fixed term and may permanently deprive her of her freedom to associate with her child. The former is a pure deprivation of liberty; the latter is a deprivation of both liberty and property, because statutory rights of inheritance as well as the natural relationship may be destroyed. Although both deprivations are serious, often the deprivation of parental rights will be the more grievous of the two.
Lassiter,
The judicial procedures utilized for termination proceedings resembles a criminal prosecution. The State has considerable expertise and resources in prosecuting the case in comparison to an indigent parent defendant. Id. at 44-45,
Because the liberty interest at stake in a termination proceeding parallels that in a criminal proceeding, “the range of competence demanded of attorneys in criminal eases” should be similar to that demanded of attorneys in termination proceedings. A survey of other jurisdictions demonstrates that the great majority of courts apply the criminal standard for detei’mining the ineffective assistance of counsel in termination proceedings. See, e.g., V.F. v. State,
C.
In the criminal context, this court has set forth the standard for ineffective assistance of counsel at the trial level 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. Where an appellant successfully meets these burdens, he will have proven the denial of assistance “within the range of competence demanded of attorneys in criminal cases.”
Antone,
[I]t is counsel’s responsibility, in the limited time and space allowed, to present issues that may have influenced the trial court’s decision adversely to his or her client. Our focus, therefore, is not upon the possible, or even probable, influence appellant’s counsel’s actions had on the appellate court, but, instead, we center on whether counsel informed him or herself enough to present appropriate appealable issues in the first instance.
An “appealable issue” is an error or omission by counsel, judge, or jury resulting in the withdrawal or substantial impairment of a potentially meritorious defense. Every appealable issue is not required to be asserted. The page limitation on the appellate briefs and the dictates of effective appellate advocacy compel appellate counsel to advance a limited number of key issues.
... Counsel’s scope of review and knowledge of the law are assessed, in light of all the circumstances, as that information a reasonably competent, informed and diligent attorney in criminal cases in our community should possess. Counsel’s informed decision as to which issues to present on appeal will not ordinarily be second-guessed. Counsel’s performance need not be errorless. If however, an appealable issue is omitted as a result of the performance of counsel whose competence fell below that required of attorneys in criminal casesf] then appellant’s counsel is constitutionally ineffective.
Briones,
VIII.
A.
Applying Hawaii’s criminal standard to the pre-termination period in this case, the ICA was correct that Petitioner “fails to identify with specificity [ ] at which points in the case that she was unconstitutionally deprived of access to competent counsel!,]” RGB,
B.
With regard to the post-termination proceedings, the ICA, despite (1) being “troubled by the impact of the immediate discharge of [Petitioner’s] standby attorney in the Termination Order,” id., (2) “particularly in light of [the court’s] assessment of [Petitioner’s] mental health status[,]” id., (3)
The ICA recited the definition of an ap-pealable as “ ‘an error or omission by counsel, judge, or jury resulting in the withdrawal or substantial impairment of a potentially meritorious defense.’ ” Id. (quoting Dan v. State,
Briones requires that “counsel inform[] him or herself enough to present appropriate appealable issues in the first instanee[.]”
C.
In opposition to the foregoing, the majority states three reasons for not “importing criminal law concepts directly.” Majority opinion at 25-27,
1.
The majority’s first reason is that the right to counsel in the criminal context is based on the Sixth Amendment of the United States Constitution and article I, section 14 of the Hawai'i Constitution and the right to counsel in termination of parental rights proceedings is based on the Due Process Clause in the Fourteenth Amendment and the due process clause in article I, section 5 of the Hawai'i Constitution.
Of course, the Sixth Amendment does not apply directly to the states, but through the Due Process Clause of the Fourteenth Amendment.
2.
The majority’s second reason that “there are substantial differences in the purposes of criminal as opposed to termination of parental rights[,]” majority opinion at 25,
The right to counsel in criminal eases is “designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.” Gideon,
Similarly, the majority in Lassiter recognized that “the ultimate issues” in a termination case “are not always simple[.]”
There is a “gross disparity in power and resources between the State and the un-eounseled indigent parent.” Id. at 44,
Moreover, as the Lassiter majority stated, “parents [in termination proceedings] are likely to be people with little education,” “have had uncommon difficulty in life,” and are “thrust into a distressing and disorienting situation.” Id. at 30,
Given the sometimes complex issues presented at termination proceedings, the State’s “gross disparity in power and resources[,]” and the laypersons’ inability to adequately represent themselves, affording counsel in parental termination eases accomplishes the same purpose as affording counsel for indigent persons in criminal cases— the assurance of “fair trials before impartial tribunals in which every defendant stands equal before the law.” Gideon,
3.
The majority’s third reason is that the “interests implicated by criminal and termination of parental rights are substantially different.” Majority opinion at 26,
“[T]he interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court].” Troxel v. Granville,
“A termination of parental rights is both total and irrevocable” and “leaves the parent with no right to visit or communicate with the child, to participate in, or even know about, any important decision affecting the child’s religious, educational, emotional or physical development.” Id. at 39,
Moreover, in asserting that the “termination of parental rights proceedings implicate the interests of the child in having a prompt and permanent resolution” of his or her custody status, majority opinion at 26,
[T]he implicit and erroneous assumption on which this reasoning is based is that the child’s welfare has been served by the interruption of the parents’ custody and control despite the fact that the child’s parents were not effectively represented during the proceedings. Can it be said that it is in the best interest of a child to be taken from the accustomed custody and control of his or her parents when there has not been a fair hearing related to the need for such intervention?
Id. (emphasis added). Furthermore, reversal does “not necessarily mean that the status quo is reinstated and that the child can no longer be protected.... [I]t simply requires that the proceedings be reconducted because the parents were not properly represented.” Id.
The majority’s view in the instant case that “parental proceedings implicate the interests of the child in prompt and permanent resolution” erroneously assumes that the child’s best interest can only be served by the termination of Petitioner’s parental rights even though Petitioner was not effectively represented during her appeal. Even the Lassiter majority would not go so far. According to Lassiter, while “the State has an urgent interest in the welfare of the child,” “it shares the parent’s interest in an accurate and just decision.” Lassiter,
D.
After reciting three reasons for not “importing criminal law concepts directly,” the majority purportedly adopts “a fundamental fairness test” from State ex rel. Juvenile Department of Multnomah County v. Geist,
“[E]ven though we can accept mother’s assertion of a right to competent and effective counsel under the statute, direct appeal on the trial court record is not the appropriate forum. The legislature has not created a special forum, as it has in criminal matters (ORS 138.510-ORS 138.680), and there is no source from which we may derive the authority to create one. We hold that the question of the effectiveness of counsel may not be reviewed on direct appeal.”
Id. at 1200 (quoting Geist I,
Other jurisdictions, however, have criticized the Geist II test by pointing out that there is little practical difference between the Geist II test and the test of ineffective assistance of counsel in criminal cases as set forth in Strickland. See L.W. v. Dep’t of Children & Families,
In Strickland, the Supreme Court adopted the federal standard for ineffectiveness of counsel in a criminal proceeding, to the effect that (1) “counsel’s performance was deficient[,]”
One need not be a lawyer to appreciate the difficulty of meeting the prejudice requirement established by the Coui’t. Given the inherent subjectivity of determining whether past results would probably have been different, defendants will successfully prove clear cases of prejudice only where there is evidence that they should not have been convicted.
In Briones, this court explained that the Strickland standard was “too burdensome for defendants to meet” because the “prejudice requirement [is] almost impossible to surmount.”
Federal cases concerning effective assistance of trial and appellate counsel rely on the standard enunciated in [Strickland ], a test criticized as being too burdensome for defendants to meet becatise it imposes a double burden upon defendants trying to show their counsel’s ineffective assistance, resulting in a prejudice requirement almost impossible to surmount. [Smith], 68 Haw. [at] 310 n. 7, 712 P.2d [at] 500 n. 7[ ]. Strickland required not only that trial counsel’s action or omission be an “unprofessional error,” but that that error resulted in a “reasonable probability that ... the result of the proceeding would have been different.”466 U.S. at 694 ,104 S.Ct. 2052 [.]
Briones,
Unlike the standard adopted in Hawai'i, both Strickland and Geist II require that persons challenging the adequacy of counsel demonstrate that, if not for their counsel’s ineffectiveness, the outcome of the ease would be different. As noted above, Strickland describes its prejudice prong as requiring “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Similarly, Geist II will not require reversal or remand where “on de novo review of the record, the reviewing court is satisfied ... that even with adequate counsel, the result inevitably, would have been the same.”
Requiring a showing that the result would not inevitably have been the same in order to qualify for remand or reversal imposes an identical burden on parents in termination proceedings as on defendants in federal criminal cases under Strickland. As noted before, this court has rejected the Strickland standard “[g]iven the inherent subjectivity of determining whether past results would probably have been different.” Smith,
IX.
A.
“[I]t is well settled that this court may relax the deadline for filing a notice of appeal ‘where justice so warrants’ and ‘the untimely appeal had not been due to the defendant’s error or wilful inadvertence.’ ” State v. Shinyama, 101 Hawai‘i 389, 393 n. 6,
The rationale underlying some of the foregoing cases was that the defendant was denied due process due to counsel’s failure to perfect the appeal. In Erwin, this court agreed with the State “that a notice of appeal complying with [Hawaii Rules of Criminal Procedure] Rule 37(b), was not filed within the ten-day period prescribed by Rule 37(c).”
In Knight, defendant’s counsel failed to timely file the notice of appeal based upon negligence on the part of his secretary. 80
B.
Perhaps acknowledging that our precedent would mandate that Petitioner be permitted to file a direct appeal, the majority places additional burdens on parents not imposed on criminal defendants in this state, stating in a footnote that, “even if the holding in [Roe v.] Flores-Ortega, [
In Flores-Ortega, a criminal defendant sought habeas corpus relief alleging that his defense counsel had been ineffective in failing to file a notice of appeal.
In deciding the question that lay between the two poles, the Supreme Court rejected the rule in the First and Ninth Circuits that “[e]ounsel must file a notice of appeal unless the defendant specifically instructs otherwise,” and that failure to do so “is per se deficient.” Id. at 478,
With regard to the second part, which requires a defendant to show prejudice from counsel’s deficient performance, the court “followed the pattern established in Strickland ... requiring a showing of actual prejudice (i.e., that, but for counsel’s errors, the defendant might have prevailed)[.]” Id. at 484,
Obviously, Flores-Ortega is not applicable to this case or in this jurisdiction. First, Flores-Ortega observed that “the question presented [in the case lay] between [] two poles” because the defendant had not “clearly conveyed his wishes [to appeal] one way or the other.”
Second, Flores-Ortega applied the Strickland test, which requires a defendant to prove that “but for counsel’s deficient failure to consult[,] he would have timely appealed.”
X.
As recounted before, despite the court’s determination that “[Petitioner] 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[,]” as noted by the ICA, the court unilaterally and sua sponte dismissed Petitioner’s trial counsel. At the point of discharge, no counsel was substituted in place of discharged counsel. Hence, Petitioner was without counsel during a crucial period following the termination hearing, from March 11, 2005, through March 29, 2005. Petitioner was not schooled in the law and presumably was unaware of the requirement that a motion for reconsideration was required to be filed. As recognized in K.L.J., discussed supra, “[a] parent who is without the aid of counsel in marshalling and presenting the arguments in his favor will be at a decided and frequently decisive disadvantage.”
Petitioner’s counsel therefore ineffectively failed to pursue Petitioner’s appeal in the first instance. Yonemori herself admitted that her failure to immediately file the motion for reconsideration fell below the level of competence required to protect Petitioner’s rights.
XI.
In arriving at the conclusion that there was no abuse of discretion in denying Petitioner’s Rule 60(b) Motion, the majority asserts that (1) “the delay ... in determining permanent custodial status has a substantial negative impact on the interests of the child!,]” majority opinion at 28,
A.
As to its first assertion, the majority argues that the additional delay that would be caused by granting the Rule 60(b)(6) motion was a factor that weighed substantially in favor of denying the motion and “[Petitioner] failed to establish an entitlement to relief sufficient to overcome that factor.” Majority opinion at 29,
First, the equities in this ease, such as the child’s present status or the best interests of the child, are factors that must be determined after Petitioner is given the opportunity to present her side of the case. Cf. Lassiter,
By deciding the merits of Petitioner’s case without affording Petitioner her right to respond, the majority has undermined the legal calculus that includes the best interests of the child. It should be the judicial process that determines the result or outcome of the case, i.e., whether Petitioner had fair and equal treatment. As discussed supra, Lassi-ter recognizes that, as “our adversary system presupposes, accurate and just results are most likely to be obtained through the equal contest of opposed interests” and therefore “the State’s interest in the child’s welfare may perhaps best be served by a hearing in which both the parent and the State acting for the child are represented by counsel, without whom the contest of interests may become unwholesomely unequal.”
In this vein, the majority’s assertion that inasmuch as Petitioner failed to point to any alleged errors in the record,
Furthermore, the majority’s argument that this opinion “relies in part on the family court’s [findings] regarding [Petitioner's mental health condition to dispute the propriety of the family court’s decision to discharge [Petitioner’s counsel, ... and also relies on DHS’s Answering Brief to the ICA, which draws significantly from the [findings],” majority opinion at 4,
Second, Petitioner had a right to bring a motion to relieve her from the Termination Order under Rule 60(b)(6). In fact, the majority concedes that Petitioner’s Rule 60(b)(6) motion “was an appropriate vehicle for raising ineffective assistance of counsel in the circumstances of this case.”
B.
As to its second assertion, the majority contradictorily faults Petitioner for not having a meritorious defense, despite its denouncement of the criminal standard in termination cases. The majority states, “In view of [Petitioner’s] 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.” Majority opinion at 29,
Furthermore, the majority’s reliance on the lack of a so-called meritorious issue as a basis for denying a Rule 60(b)(6) motion is wrong. Nowhere does HRFC 60(b)(6) re
Additionally, a potentially meritorious defense construct is inapplicable in this case. Whether a defendant has a potentially meritorious defense is either raised during or after a direct appeal. In cases determining the question of ineffective assistance of appellate counsel, petitioners have first been afforded a direct appeal. See, e.g., Loher v. State,
C.
As to its third assertion, the majority again faults Petitioner for “not adequately establish[ing] that she did not play a role in contributing to the delay in bringing the motion” and for “not explain[ing] why [Petitioner] waited until March 10, 2006 before bringing Yonemori’s inaction to the attention of the family court.” Majority opinion at 29,
With respect to the first eighteen days after the issuance of the Termination Order, the record reflects that despite having denied Petitioner’s previous request to dismiss Iopa as counsel for the termination hearing, the court apparently unilaterally and sua sponte dismissed Petitioner’s counsel without explaining why trial counsel was dismissed. As noted before, no counsel was substituted at the point the court took it upon itself to discharge counsel. As a result of the court’s order, Petitioner was improperly left without counsel for eighteen out of the crucial twenty-day time period for filing her motion for reconsideration. As noted in detail in section IV.B.3.b. supra, with respect to the period from March 29, 2005, when Yonemori was appointed as counsel, until March 2006, the record reflects that the delay was due to Yonemori’s ineffective assistance of counsel. Furthermore, the record also reflects that Petitioner was diligent in filing a notice of appeal on October 17, 2006, regarding the court’s ruling on her Rule 60 motion and Yonemori’s motion to withdraw. Petitioner did not learn that her October 17, 2006 appeal was premature until January 12, 2007, when the ICA issued its opinion dismissing the appeal for lack of jurisdiction. Shortly after the ICA issued its opinion on January 12, 2007, Petitioner, through new counsel, timely filed her Rule 60 Motion in this case.
Contrary to the majority’s assertion that “the record does not reflect” the reasons “why [Petitioner] did not act sooner with regard to Yonemori’s failure to timely appeal,” majority opinion at 29,
As discussed supra, the record reflects that “Petitioner ha[d] been coming to [Yone-mori’s] office every week” and was “understandably quite anxious” about bringing her appeal. Both of Yonemori’s declarations of counsel filed on March 17, 2006 stated that the delays in filing Yonemori’s appeal were due to Yonemori’s actions and were in no way caused by Petitioner. Further, Petitioner’s affidavit attached to her March 10, 2006 pro se Motion for Relief stated that “[counsel assigned by this court remains ineffective to bring this matter to justice.” (Emphasis added.) It is fundamentally wrong to lay the fault for the failure to file a timely motion for reconsideration and the resulting delay at the feet of Petitioner, rather than appellate counsel, as the majority does. The majority’s decision cannot be justified by relying on the findings and conclusions terminating Petitioner’s parental rights where Petitioner has been denied the opportunity to respond to those findings and conclusions on direct appeal because of ineffective assistance of counsel.
D.
As to its fourth assertion, the majority faults Petitioner for “failing] to include in the appellate record any transcripts of proceedings[
XII.
Finally, Petitioner’s second argument is that she should be allowed to “see the ‘confidential records’ in [Petitioner’s] file.” However, Petitioner does not indicate, nor does it seem possible, that any information contained in records pertinent to proceedings occurring after November 9, 2006, would have any relevance to the proceedings that resulted in the Termination Order, from which Petitioner seeks relief.
. For the purposes of preserving confidentiality, Petitioner/Mother-Appellant is referred to a "Petitioner” and the subject child is referred to as "RGB" or "the child.”
. HRS § 571-54 provided in relevant part:
An order or decree entered in a proceeding based upon section 571-11(1), (2), (6), or (9) shall be subject to appeal to the supreme court only as follows:
Within twenty days from the date of the entry of any such order or decree, any party directly affected thereby may file a motion for a reconsideration of the facts involved. The motion and any supporting affidavit shall set forth the grounds on which a reconsideration is requested and shall be sworn to by the movant or the movant's representative. The judge shall hold a hearing on the motion, affording to all parties concerned the full right of representation by counsel and presentation of relevant evidence. The findings of the judge upon the hearing of the motion and the judge's determination and disposition of the case thereafter, and any decision, judgment, order, or decree affecting the child and entered as a result of the hearing on llie motion shall be set forth in writing and signed by the judge. Any party deeming oneself aggrieved by any such findings, judgment, order, or decree shall have the right to appeal therefrom to the supreme court upon the same terms and conditions as in other cases in the circuit court and review shall be governed by chapter 602; provided that no such motion for reconsideration shall operate as a stay of any such findings, judgment, order, or decree unless the judge of the family court so orders; provided further that no informality or technical irregularity in the proceedings prior to the hearing on the motion for reconsideration shall constitute grounds for the reversal of any such findings, judgment, order, or decree by the appellate court.
(Emphases added.) Because the Termination Order in this case was issued pursuant to HRS Chapter 587, the jurisdictional provision in HRS § 571-11(9) (1993 & Supp.2005) applied, and, thus, pursuant to the foregoing portion of HRS § 571-54, a motion for reconsideration was required prior to appeal. HRS § 571-54 has since been amended. The current version of the statute does not require a motion for reconsideration as a prerequisite to appeal.
. The due process clause of article I section 5 of the Hawai'i Constitution provides in part that "[n]o persons shall be deprived of life, liberty or property without due process oflaw[.]”
. This declaration was attached to Yonemori's Motion to Extend Time to File and Docket Record on Appeal from March 31, 2005 to September 30, 2005. The motion to extend was dated September 27, 2005. The back of the declaration indicates the documents were "Received (LDB) SEP 27, 2005,” but the motion was filed on March 17, 2006.
. This declaration is attached to Yonemori’s Motion to Extend time to File and Docket Record on Appeal from September 30, 2005 to March 17, 2006, dated March 10, 2006, and filed on March 17, 2006.
. The “exceptional circumstances” requirement stated in Hayashi v. Hayashi, 4 Haw.App. 286,
Moreover, in Hayashi, the ICA indicated that "exceptional circumstances” were necessary to justify the lengthy delay in that case, stating that, "[i]n the instant case. Wife waited six years before filing her Rule 60(b)(6) motion. Such a delay may or may not be unreasonable depending upon whether any exceptional circumstances are present which would mitigate the lengthy delay in bunging the motion."
. As noted supra, however, a motion for reconsideration was a prerequisite to filing the Notice of Appeal in this case.
. In a divorce case, Lowther v. Lowther,
HFCR Rule 60(b)(1) permits relief from a divorce decree for the reasons of “mistake, inadvertence, surprise, or excusable neglect” but requires the motion to be made not more than one year after the decree. HFCR Rule 60(b)(6) permits relief from a divorce decree for "any other reason justifying relief from the operation of the judgment." In other words, HFCR Rule 60(b)(6) does not permit relief for the reasons of "mistake, inadvertence, sur*41 prise, or excusable neglect).] ” More specifically,
[t]here are two situations that courts sometimes characterize as "other reasons,” but that are more likely egregious forms of conduct covered under another clause of Rule 60(b), and clause (6) is invoked to circumvent the one-year limitation. The first occurs when a party comes in more than a year after judgment to assert that he is the victim of some blunder by counsel. Claims of this kind seem to fit readily within the grounds of mistake, inadvertence, and excusable neglect set out in clause (1), and numerous courts have so held and have denied relief. However, when there is gross neglect by counsel and an absence of neglect by the party, some courts have refused to impute the attorney’s negligence to the party and have granted relief under Rule 60(b)(6). Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2864 (1995) (citation omitted).
In this case, there was gross neglect by counsel for [movant] and by [movant]. Therefore, ... the family court did not abuse its discretion when it declined [movant's] request to set aside or modify other parts of the Divorce Decree....
Lowther,
. It may be observed that ‘'[n]ational child welfare experts generally consider Hawai'i to be at the forefront of most states in services to families in child abuse and neglect ... cases.” Iokona Baker and Faye Kimura, Access to Justice: Parents' Rights to Counsel in Termination of Parental Rights, 12-DEC Haw. B.J. 11 (2008). However, trial courts in Hawai'i "have refused to decide whether counsel must be appointed for all indigent parents in [parental termination] cases.” Id. at 12. Thus, “[s]ince children of Native Hawaiian descent represent the largest ethnic group in Hawaii’s foster care system, barriers to obtaining timely quality legal counsel in child welfare cases has had and will continue to have a profound effect on the character of the statewide community as more and more Native Hawaiian parents lose the right to have their children return home." Id.
. While Yonemori rendered ineffective assistance to Petitioner with respect to her failure to file the motion for reconsideration, the record reflects that Yonemori's actions were not due to ill-will or bad faith.
. See Kansas v. Ventris, - U.S. -,
. The majority argues that "a civil [termination] proceeding focuses on the best interest of the child and not on guilt or innocence," that “procedural rules governing criminal cases are not necessarily applicable or even desirable in [family] courts,” that the "burden of proof in termination cases is clear and convincing evidence rather than proof beyond a reasonable doubt” and that "judicial involvement is much more intensive than it is in the usual criminal case.” Majority opinion at 25-26,
. Relevant to Yonemori’s level of competence, it is not entirely clear from the record that Yone-mori was aware, even after the fact, that a motion for reconsideration had to be filed as a prerequisite to filing an appeal, but only that she failed to timely "appeal.”
. As noted before, HRS § 571-54 no longer requires that a motion for reconsideration be filed as a prerequisite to appeal in cases arising under HRS chapter 587. With regard to the 2006 amendments, which removed the requirement, the Committee on Judiciary and Hawaiian Affairs stated that ”[t]he purpose of this measure is to eliminate the requirement for a motion for reconsideration in the appellate process for child protective cases[,]" and further explained:
Under the current law, a party must first file a motion for reconsideration with the family*63 court judge who issues a child protective order before the party may appeal the order. This requirement means that the party must file the motion for reconsideration, give notice of the motion to the other parties, have a hearing, and obtain a decision from the same judge who issues the order. Often, parties may miss the deadline for filing the motion for reconsideration and are thereafter estopped from challenging the order on appeal.
Your Committee finds that this requirement builds unnecessary delay into the appellate review system. To speed the resolution of child protective sendees cases, this measure will remove the motion for reconsideration as a prerequisite to the appellate process.
Sen. Stand. Comm. Rep. No. 2245, in 2006 Senate Journal, at 1132 (emphases added). Thus, the legislature specifically addressed the unfairness and delay that results, in a case such as the one at bar, deleting the requirement that a motion for reconsideration be filed prior to appeal.
. The majority states that (1) Petitioner’s Rule 60(b) motion “contained no allegations whatsoever about what errors had occurred in the family court proceedings leading up to the entry of the Termination Order[,]” majority opinion at 4,
. The majority's note that "[o]ur conclusion [] 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 placet,]” majority opinion at 22,
. The majority faults Petitioner for not including the transcripts for the permanent plan hearing, the April 6, 2006 hearing, and the hearing of Petitioner’s February 6, 2007 Rule 60(b)(6) motion on April 24, 2007. Majority opinion at 30,
. At the time the court entered its order, HRS § 587-73(b)(4) (2006 Repl.) provided that
[i]f the court determines that the criteria set forth in subsection (a) are established by clear and convincing evidence, [] the court shall order ... [t]hat such further orders as the court deems to be in the best interest of the child, including, but not limited to, restricting or excluding unnecessaiy parties from participating in adoption or other subsequent proceedings, be entered[.]
(Emphasis added.) In addition to the November 9, 2006 order, the court had determined in the Termination Order that "[i]t is in [RGB's] best interests that the participation of [Petitioner] 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 court’s decision to restrict Petitioner's participation in subsequent proceedings involv