It looked at first like a typical Hawaii child protection case. 

Someone contacted the state Child Welfare Services branch in 2018 to report that a couple on Kauai were doing drugs and couldn’t take care of their two sons.

CWS asked the parents to submit to drug tests. But over the course of the next several months, they either didn’t show up for the tests, tested positive for methamphetamines or admitted using, according to court records.

In April 2019, CWS called the police to ask for help removing the children, and placed them in foster care with strangers. That set off a Family Court proceeding that, more than a year later, led to a judge terminating parental rights, clearing the way for the boys to be adopted.

That’s where the case took a surprising turn.

The father, Shandon Cabinatan, appealed the ending of his parental rights, arguing that he had not been able to participate, with the help of court-appointed counsel, in the hearing. 

He had shown up at that hearing several minutes late. Because he had missed some earlier hearings, the judge had previously dismissed his court-appointed attorney. The judge told Cabinatan he could not take part in the hearing – by presenting evidence, for instance, or cross-examining witnesses. He would have to just sit there, listening to the proceedings. 

So Cabinatan got up and left.

Seven months later, the Intermediate Court of Appeals of Hawaii agreed with Cabinatan that his due process rights had been violated because his court-appointed attorney had been discharged. The ICA reversed the termination of parental rights.

Instead of losing their two sons forever, Cabinatan and his wife, Mahlonna Mawae-Callison, are on track to get them back after undergoing drug treatment and the other services required by the state. The boys now stay overnight with them two nights a week.

And their case has opened the door for other parents whose rights were terminated, and who didn’t have court-appointed attorneys throughout their cases, to also appeal. In two other instances, the ICA has reversed the Family Court’s decision to terminate parental rights.

The three cases have shaken up the insular world of judges, social workers, court-appointed attorneys and guardians ad litem who oversee these cases, not to mention the parents who face the permanent loss of their children. 

Neither the state Judiciary nor CWS would estimate the number of parents whose children have been taken who could make similar arguments on appeal because they lacked access to counsel at some point during their cases. Some insiders said the uncertainty of how to resolve the cases and how many more might pop up has caused confusion. 

The Judiciary would not opine on whether appeal on these grounds would be possible only within the normal window – as much as 60 days – or potentially could apply to parents whose children were taken away earlier.

If parents with older cases are barred from appealing, that would mean that some unknown number were not afforded a constitutional right that could have kept them from losing their children.

“There are a lot of people that would have been affected by this over the past few years,” said Jacob Delaplane, one of the attorneys appointed by the court to represent the indigent parents who constitute the overwhelming majority of those in Family Court on child welfare cases.

Keeping Up With Court Dates

Many such parents struggle with mental illness, substance abuse and unstable housing, all of which can make it hard to keep up with the Family Court proceedings. That, in turn, could have led the court to dismiss their court-appointed attorneys, the situation that led to the recent ICA decisions.

In a prepared statement, the Department of Human Services, which includes CWS, said that it “strongly believes in and supports parents’ right to have legal representation,” but that the department does not have the power to appoint attorneys.

“That being said, DHS has a responsibility, in cases like these, to work with the Court and counsel to find a way to achieve permanency and stability, which is in the best interests for the children involved.”

Cabinatan and Mawae-Callison both grew up on Kauai. They met in high school and started dating a few months later. They’ve been together for the 14 years since, and married a year and a half ago.

After CWS showed up with the police and took their sons to be placed with strangers, “It was really hard to stay in the house,” Mawae-Callison recalls. Everywhere they looked, they saw reminders of their children – toys, clothes and even their food.

Cabinatan and Mawae-Callison were at his mother’s house when their lawyers called to tell them that the ICA had reversed the Family Court’s decision to terminate their parental rights. They were happy, but also determined to do what was needed to get their sons back, Mawae-Callison said.

Because the decision was so unprecedented, the couple and their attorney, Gregory Meyers, were unsure what came next – should they take some action or wait to hear from the court?

They had been seeing the boys three hours a month. But at an ensuing court hearing, they got permission to see them three hours each week. Then came supervised overnight visits, leading eventually to unsupervised visits two nights a week. Their next hearing in Family Court is scheduled for August.

Their 11-year-old is mature enough to sort of understand what the court decisions mean. But the 6-year-old doesn’t. He keeps asking how long it will be before he doesn’t have to leave his parents for four days every week. 

“This whole thing has been emotionally hard for them,” Mawae-Callison said.

Right To An Attorney

The July 27 ICA decision in their case relied heavily on two earlier rulings by the Hawaii Supreme Court. In a 2014 decision, the Supreme Court held that parents have a constitutional right to counsel, and that the court should appoint counsel for indigent parents as soon as CWS files a petition for foster custody.

In 2021, the Supreme Court held that a Family Court judge should appoint counsel for indigent parents even earlier in the process, when CWS files a petition seeking to put a family under state supervision, since that can put them on track to having their children taken away. 

In that case, a mother argued that the Family Court had erred when it failed to appoint her counsel until 97 days after her older child had been placed in foster custody. The Supreme Court reversed a decision by the ICA, which had held that the Family Court’s error had been harmless. The Supreme Court ruled that the denial of a basic right eclipsed the individual circumstances of a particular case, meaning that the mother did not have to prove she was harmed.

“As mother points out,” the Supreme Court wrote, “had the family court appropriately appointed her counsel prior to the January hearing, where she lost custody to DHS without benefit of counsel, she may have been able to prevent that deprivation of her constitutional right.”

The court wrote that its decision on parents’ right to counsel was consistent with decisions in several other states, citing cases in Colorado, Florida, Georgia, Montana, Oklahoma and Wisconsin.

The ICA cited the two Supreme Court precedents in two more cases this year. 

In one of those decisions, issued Jan. 31, the Family Court had dismissed the attorneys for both father and mother when they failed to show up for a hearing on foster custody. Several months later, CWS filed a motion to terminate their parental rights. 

Though the parents did get access to lawyers again, the ICA held that the 159-day hiatus in their representation, even though no hearings occurred during that time, was enough to overturn their loss of parental rights. Quoting from the 2021 Supreme Court opinion, it found that “the fundamental due process rights and mandate at issue here are not subject to ‘the vagaries of a case-by-case approach.’” 

In another decision on March 21, the ICA used the same reasoning to overturn the loss of parental rights after the father’s court-appointed lawyer had been dismissed when he failed to appear at a hearing in 2018. The father did not get involved in the case again until three years later, on the last day of the trial to end parental rights, at which time the court gave him a lawyer. But once again, the break in his representation was enough to overturn the decision to take away his parental rights, the ICA said. 

Delaplane, the court-appointed attorney, compared it to what would be expected in a criminal case. If a criminal defendant failed to show up at a hearing, he said, “it wouldn’t make sense for that appointed counsel to no longer be able to work on your case … If you’re firing indigent people’s attorneys in the middle of cases, of course that’s going to be problematic.” 

Delaplane said in his experience, every time a parent who has dropped out of sight and missed hearings gets engaged again in the case, the court reappoints counsel. 

But more severe cases could occur, he said, when the court dismissed the parent’s attorney and the parent lost track of what was happening. The parent could, of course, reach out to the court or the CWS social worker. But many such parents struggle with mental illness, addiction and homelessness, making it difficult to pursue strategies that might seem clear to someone without those challenges.

“They may be out there today wondering what happened with their case,” he said.

Delaplane and others said that, in light of the ICA decisions, judges now are careful to make sure parents have attorneys throughout their cases. 

This project is supported by the Fund for Investigative Journalism.