In the Interest of As

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Electronically Filed
Supreme Court
SCWC-11-0001065
14-FEB-2014
10:52 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---oOo---
________________________________________________________________

IN THE INTEREST OF AS
________________________________________________________________

SCWC-11-0001065

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0001065; FC-S NO. 08-11941)

FEBRUARY 14, 2014

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.; WITH
ACOBA, J., CONCURRING SEPARATELY, WITH WHOM POLLACK, J., JOINS

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

In this appeal, the Family Court of the First Circuit

(“family court”) awarded custody of AS, a minor foster child, to

AS’s non-relative foster parents, contrary to the Department of

Human Services’ (“DHS”) recommendation that AS be permanently

placed with her maternal aunt. At issue in this appeal is

whether the family court reviews DHS’s permanent placement
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recommendations for children in foster care under an abuse of

discretion or best interests of the child standard. The ICA

chose the latter standard, holding, “[T]he family court, based on

the evidence presented, must make its own determination regarding

whether the placement of the child is in the child’s best

interest.” In re AS, 130 Hawai#i 486, ___, 312 P.3d 1193, 1213

(App. 2013). DHS now appeals. On certiorari, DHS presents four

questions:

1. In ruling that DHS, as the permanent custodian of a
child, did not have the discretion to determine a child’s
placement, did the ICA commit grave errors of law by:
a) Disregarding (and overturning) the Hawaii Supreme
Court’s ruling in In re Doe, 100 Haw. 335, 346 & [n.]19, 60
P.3d 285, 296 & [n.]19 (2002) that held when DHS is
appointed the permanent custodian of a child, DHS has the
discretion to determine the child’s permanent placement?
b) Violating the rules of statutory interpretation
when it erroneously held that while HRS § 587A-15(d)(2) gave
DHS, as a child’s permanent custodian, the duty and
authority to determine a child’s placement, DHS had no
discretion because of the absence of the word “discretion?”
Does the ICA’s holding create absurd results, such as making
the Judiciary, instead of DHS, the primary child-placing
agency when children are placed in temporary foster, foster
and permanent custody, notwithstanding contrary statutory
language and legislative intent?
2. Did the ICA commit grave errors of law in ruling that
the standard and burden of the family court’s review of DHS’
permanent placement decision required DHS to prove that its
permanent placement decision was in the child’s best
interest, instead of placing the burden on the person
challenging DHS’ placement decision to prove that DHS abused
its discretion in making its assessment? Was the ICA’s
ruling also inconsistent with the Supreme Court’s ruling in
In re Doe[,] 101 Haw. 220, 231, 65 P.3d 167, 178 (2003)?
3. Did the ICA commit grave errors of law in ruling that
Federal and Hawaii law did not create relative/family
placement preferences for children in foster care, including
those in the permanent custody of DHS?
4. Did the ICA commit grave errors of law by ruling that
the family court was not required to remove DHS as the
child’s permanent custodian after ruling that DHS abused its
placement discretion?

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Although we affirm the ICA’s judgment on appeal, we also

clarify the ICA’s opinion to hold that (1) the party challenging

DHS’s permanent placement recommendation bears the burden of

proving by a preponderance of the evidence that the permanent

placement is not in the child’s best interests; (2) as an agency

with child welfare expertise, DHS, as permanent custodian of a

child, has the discretion in the first instance to determine

where and with whom a child shall live; (3) any relative

placement preference found in Title IV-E of the Social Security

Act does not condition the receipt of federal funds thereunder

upon permanent placement of foster children with relatives; (4)

there is no relative placement preference in Hawai#i Revised

Statutes (“HRS”) Chapter 587A (the “Child Protective Act” or

“CPA”) with regard to permanent placement of foster children;

therefore, to the extent that DHS’s Policy Directives PA Nos.

2005-5, -7, and -8 mandate such a preference, those policies

impermissibly alter the CPA and its legislative history; and (5)

In re Doe, 101 Haw. 220, 65 P.3d 167 (2003) (“March 2003 Doe”)

does not stand for the proposition that the family court must

relieve DHS of its permanent custodianship if the family court

disagrees with DHS’s permanent placement decision.

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II. Background

A. Factual Background and Family Court Proceedings

The following facts (except where supplemented in footnotes)

were taken from the family court’s Findings of Fact and

Conclusions of Law. On certiorari, none of the Findings of Fact

are contested, and are, therefore, binding upon this court. See

Kelly v. 1250 Oceanside Partners, 111 Hawai’i 205, 227, 140 P.3d

985, 1007 (2006).

[AS] was born on July 22, 2008. At birth she weighed 5

pounds, 10.9 ounces. She was drug exposed in utero. [AS] was

taken into foster custody on July 24, 2008, via biological

parents’ voluntary foster custody agreement. [DHS] has been the

case manager offering services and monitoring the delivery of

services throughout this case. DHS filed a Petition for Foster

Custody on August 7, 2008. Since July 2010, DHS has been [AS’s]

permanent custodian. The Volunteer Guardian Ad Litem (“VGAL”)

Program was appointed by the court to serve as [AS’s] guardian ad

litem on September 23, 2008.

[Foster Parents] are the licensed foster parents for [AS].

Foster Parents are not biologically related to [AS]. DHS placed

[AS] with Foster Parents on July 24, 2008. DHS found this an

appropriate home as “these foster parents have been fostering

children for many years.”

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On or about August 28, 2008, DHS removed [AS] from Foster

Parents’ home and placed her in the home of family friends, who

had previously been foster parents to one of [AS’s] half-

siblings.

Father appeared at a hearing with his court appointed

attorney on October 8, 2008, and, after accepting Father’s

stipulation, the court took jurisdiction and awarded foster

custody of [AS] to DHS.

On February 3, 2009, DHS removed [AS] from her foster home

at the foster family’s request because of the foster mother’s

health issues. DHS returned [AS] to [Foster Parents] “as they

had told DHS that if [AS] needed a home, they would be happy to

have her return. They are experienced foster parents and love

[AS].” [AS] has continuously remained in her placement with

Foster Parents since she was returned to their home on February

3, 2009.

DHS filed its Motion for Order Awarding Permanent Custody

and Establishing a Permanent Plan on June 19, 2009. At a June

29, 2009 court hearing, DHS submitted a proposed permanent plan,

dated May 26, 2009. It recommended that permanent custody be

awarded to DHS, stating that “DHS assesses that [AS] deserves to

have a permanent home where all her needs will be consistently

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met as they have been since 7/24/08.” The proposed permanent

plan also stated:

[AS’s] current non-relative caregiver is interested in
adoption and providing a permanent home for [AS]. The non-
relative caregiver is willing to maintain family connections
by supervising visits after adoption for father. As mother
is incarcerated, foster mother is not permitted to bring
[AS] into the facility. However, once mother is released,
foster mother is willing to supervise visits with mother as
well. An Ohana Conference is being requested for the family
to meet the foster mother. Maternal relatives are either
unwilling or unlicenseable to care for [AS]. Father has
stated he has no relatives. This has been confirmed via
EPIC family finding efforts.

In June 2009, [a DHS social worker assigned to AS’s case] asked

[one of the Foster Parents] if she and [the other Foster Parent]

were interested in adopting [AS]. [Foster Parents] immediately

indicated that they wanted to adopt [AS].

[AS’s Maternal Aunt] is an intervening party, her motion to

intervene having been granted on June 15, 2011. [Maternal Aunt]

has lived on Maui with [her daughter] since December 2007.

[Maternal Aunt] testified that in September or October 2008 she

informed [AS’s DHS social worker] that she was unable at the time

to care for [AS]. [Maternal Aunt] applied to be a foster parent

and was approved by DHS for placement of [AS] in October 2009.1
1
Around this time, the Safe Family Home plan (providing for reunification
with birth parents) and the permanency plan (recommending termination of the
birth parents’ parental rights) were running concurrently. Father was still
attempting to reunify with AS. As a result, at an October 28, 2009 hearing,
even though DHS had identified Maternal Aunt as a potential placement, DHS
informed the family court that it was “going to hold off on moving the child
until after the [termination of parental rights] trial so that father can
continue his efforts to reunify, have his visits.” Father’s attorney also
requested that Father’s visits be increased, and the family court granted the
(continued...)

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Once [Maternal Aunt]’s home was approved for placement, DHS took

the position that [AS] should be placed with her on Maui. In

December 2009, pursuant to court order, [AS] began having regular

visits with [Maternal Aunt].

Mother stipulated to the termination of her parental rights

and after a trial on DHS’s Motion for Order Awarding Permanent

Custody and Establishing a Permanent Plan, Father’s parental

rights were terminated.2

Because of the differing positions of DHS and the VGAL

regarding the placement of [AS], a placement trial was set for

October 4, 2010. The placement trial commenced on October 3,

2011, continued on October 5, 2011, and was completed on October

6, 2011. The basic issue for the trial was whether [AS] should

maintain her current placement in the [Foster Parents’] home or

be moved to a placement with [Maternal Aunt] on Maui. DHS, as

[AS’s] permanent custodian, determined that it was in [AS’s] best

interests to be permanently placed with [Maternal Aunt].

[Maternal Aunt] agreed with DHS. The Foster Parents and the VGAL

1
(...continued)
request. The family court ordered DHS to “make best efforts to increase
visits between Father & [AS].” The DHS social worker supervisor assigned to
AS’s case also testified that when a court orders increased visits for a
parent, “[i]t’s almost impossible” for DHS to comply with that order and still
place a child off island.

2
The Order Awarding Permanent Custody and Establishing a Permanent Plan
were filed on July 19, 2010.

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Program disagreed with DHS and sought an order from the court

prohibiting DHS from removing [AS] from her placement with Foster

Parents and making Foster Parents her permanent placement.

The court rendered its oral decision on October 31, 2011,

reflected in its Order Re: Trial on Placement, filed November 18,

2011.3

3
The Order Re: Trial on Placement states, in relevant part:
1. DHS shall maintain [AS’s] placement in the . . . foster
home.
2. [AS] shall not be removed from her current home except
if there is imminent harm.
3. DHS shall continue to provide visitation with [Maternal
Aunt] and with [AS’s] biological family on Oahu and her
half-siblings, in consultation with the VGAL Program.
4. DHS’s oral motion to be relieved as [AS’s] permanent
custodian made after the Court announced its decision is
denied.

Paragraph 4 in the Order Re: Trial on Placement refers to the following
exchange between the family court and counsel for DHS, which occurred after
the family court rendered its oral decision on October 31, 2010:
[COUNSEL FOR DHS]: Your Honor, as a standing practice in my
office, at this time the Department wishes to be relieved as
permanent custodian of the child based on the Court’s ruling
[that DHS abused its discretion in recommending that AS be
placed with Maternal Aunt].
THE COURT: To be relieved?
[COUNSEL FOR DHS]: Yes. And appoint . . . [Foster Parents]
as [AS’s] permanent custodian.
THE COURT: Can you explain . . . why the Department’s
making that motion?
[COUNSEL FOR DHS]: Well, it’s basically the Court’s ruling
that we did abuse our discretion and it’s basically a
reflection on our fitness as permanent custodian, Your
Honor. So it’s standard practice coming out of my office in
these situations to ask to be relieved of that –
THE COURT: Okay.
[COUNSEL FOR DHS]: -- the Department be relieved of its
obligation and appoint the resource parents as the permanent
custodian.
THE COURT: At this point the Court will deny that motion.

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At the time of the trial, [AS] had lived with Foster Parents

for most of her life (approximately 34 of 39 months). [AS] views

her current placement as her home. [AS] is bonded to all of the

members of her foster home, including [Foster Parents and their

children]. [AS] has a deep attachment to [one of the Foster

Parents], who has been her primary caregiver for almost all of

her life. [AS’s] relationship with [Maternal Aunt] has developed

into a strong one and she has formed a bond with [Maternal Aunt].

However, her relationship with Foster Parents is stronger than it

is with [Maternal Aunt].

DHS supports placement of [AS] with [Maternal Aunt] because

of its policy4 in favor of kin placements. [A DHS social worker]

4
The DHS Policy Directives Nos. PA 2005-5, 2005-7, and 2005-8 were
admitted into evidence. DHS Policy Directive PA No. 2005-5 is entitled
“Supporting, Strengthening, and Maintaining Family Connections through Kinship
Placement of Children Active with Child Welfare Services Branch (CWSB).” It
states, in relevant part, that the CWSB’s policy is “to seek and assess
relatives or kin as foster, adoptive, and/or permanent placement resources for
children under the Department’s voluntary, court-ordered foster or permanent
custody and that relatives or kin placement is preferred to maintain family
connections.” (Emphasis added). Further, DHS Policy Directive PA No. 2005-5
states, “In the absence of safety factors, . . . placement with kin meeting
CWSB licensing requirements shall be a priority in order to maintain family
connections and as a permanent resource for children.” (Emphasis in
original.)
DHS Policy Directive PA No. 2005-7, entitled “Standards for Kin
Placement of Children Under the Department of Human Services’ (DHS) Placement
Responsibility,” makes the same statement that “placement with kin meeting
CWSB licensing requirements shall be a priority in order to maintain life-long
and enduring family connections and as a permanent resource for children.”
(Emphasis in original.) In addition, it provides, “In the absence of any
statutory definition or guidelines for ‘the best interests of the children’ in
§587-1, CWSB staff shall apply the . . . Safe Family Home Guidelines’ (SFHG)
factors in §587-25 when using ‘the best interests of the children’ in
assessing and selecting kin as foster and/or adoptive placement[.]” Further,
DHS Policy Directive PA No. 2005-7 states, “All child placement decisions are
subject to Family Court review. This policy directive does not interfere with
(continued...)

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testified credibly on behalf of DHS that, but for the blood

relationship between [AS] and [Maternal Aunt], DHS would not

remove [AS] from the Foster Parents’ home. [Another DHS social

worker] testified credibly on behalf of DHS that, apart from

[Maternal Aunt’s] blood relationship to [AS], DHS believes that

there is nothing else that distinguishes her home over Foster

Parents’ home. There is nothing about the quality of the care

that [AS] has received in Foster Parents’ home that requires the

removal of [AS].

Removing [AS] from her placement with Foster Parents on Oahu

for placement with [Maternal Aunt] on Maui will cause her to

experience a sense of loss, because she is attached to her foster

family, and it is impossible to predict how these losses will

impact her as she gets older or how she will react to these

losses. Removing [AS] from her placement with Foster Parents for

placement with [Maternal Aunt] on Maui will be traumatic to [AS],

even if the transition goes smoothly and she is able to maintain

meaningful contact with her current foster family.

4
(...continued)
the Family Court’s discretion to decide what is in the best interests of the
children. . . .”
DHS Policy Directive PA No. 2005-8 is entitled “Permanent Plan Approval”
and states that it is DHS’s “policy to seek and assess kin as foster,
adoptive, and/or permanent placement for children under the Department’s
custody and that kin placement shall be a priority to maintain life-long
family connections.” (First emphasis added; second emphasis in original.)

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It would be harmful to [AS] if contact with her current

foster family were not maintained after she was removed from

their home. It would be extremely traumatic to [AS] were a

placement with [Maternal Aunt] to fail for any reason. The

trauma and loss [AS] will suffer if she is removed from her

current placement, especially at this important time in her life

developmentally, is not in her best interests, even considering

the fact that it means she will not be raised on a day to day

basis by a member of her biological family. DHS has given

inadequate weight to the loss and trauma that [AS] will suffer

and the harm that removal from Foster Parents will cause. It is

in the best interests of [AS] to remain in her placement with

Foster Parents. It is not in [AS’s] best interests to be removed

from her placement with the Foster Parents and placed with

[Maternal Aunt] on Maui. The application in this case of DHS’s

policy regarding placement with kin[,] considering all of the

circumstances in this case, is not in [AS’s] best interests.

The family court’s conclusions of law were as follows:
1. Pursuant to HRS § 587A-15(d)(2), DHS has the authority
to determine where and with whom a child in its permanent
custody shall live.

2. DHS’s determination that a placement for a child in its
permanent custody is in the child’s best interests is an
ultimate finding of fact that is reviewable by the family
court under the clearly erroneous standard of review. In re
Doe, 89 Hawai’i 477, 487 (App. 1999); In re Jane Doe, 7 Haw.
App. 547, 556-558 (1989).

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3. The court can only find that DHS has abused its
discretion in exercising its authority to determine where
and with whom a child in its permanent custody shall live if
DHS’s ultimate factual finding that a placement for the
child is in his/her best interests is clearly erroneous.

4. A finding of fact is clearly erroneous when (1) the
record lacks substantial evidence to support the finding, or
(2) despite substantial evidence in support of the finding,
the reviewing court is nonetheless left with a definite and
firm conviction that a mistake has been made. In re Doe, 89
Hawai’i at 487.

5. It is in [AS’s] best interest to remain in her placement
with Foster Parents.

6. It is not in [AS’s] best interest to be removed from her
placement with the Foster Parents and placed with [Maternal
Aunt] on Maui.

7. DHS’s ultimate finding of fact that placement of [AS]
with [Maternal Aunt] is in her best interests is clearly
erroneous, insofar as the court is left with definite and
firm conviction that, despite, substantial evidence in
support of DHS’s finding, a mistake has been made by DHS.

8. DHS has abused its discretion in exercising its
authority to determine where and with whom [AS] shall live,
because its determination that placement of [AS] with
[Maternal Aunt] is in her best interests is clearly
erroneous.

9. The court has the authority to direct DHS to maintain
[AS’s] placement with Foster Parents. In re Doe, 101
Hawai’i 220, 230-31 (2003).

10. Notwithstanding the court’s findings and conclusions
that DHS has abused its placement discretion in this case,
there is not good cause to remove DHS as [AS’s] permanent
custodian.

11. To the extent that any of the findings of fact set
forth above can be construed to be conclusions of law, they
are incorporated herein as conclusions of law.

B. Appeal

DHS timely appealed the family court’s Order Re: Trial

on Placement. Maternal Aunt did not appeal. Relevant to this

Application, DHS raised the following points of error on appeal:

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2) As a matter of law, the family court was wrong by
failing to follow and apply Hawaii and Federal child
protective laws that created family placement preferences to
place children in State foster care with their family, if
appropriate. . . . The family court further erred by
focusing on DHS’ family placement policy preference (that is
in accord with Federal and Hawaii law). . . .
3) As a matter of law, the family court was wrong by
creating a contradictory two-step standard of proof, in
contravention of existing law, by first requiring DHS to
prove that its proposed discretionary placement with
Maternal Aunt was in A.S.’s best interest, and if DHS did
not meet its burden, then the burden shifted to the parties
opposing DHS’ discretionary placement recommendation to
prove that DHS abused its discretionary placement
recommendation. . . . The correct standard of proof
requires the parties opposing DHS’s discretionary placement
recommendation to prove that DHS abused its discretion, as
the [sic] A.S.’s permanent custodian, in determining which
placement is in the [sic] A.S.’s best interests. . . . The
family [court] ultimately used a pure “best interests of the
child” analysis . . . which [was] wrong.
4) As a matter of law, the family court was wrong in
failing to consider the passage of time caused by DHS’
obligation to give Father the opportunity to reunify on Oahu
and its negative impact on the exercise of its placement
discretion to place A.S. on Maui. . . .
6) As a matter of law, The Family Court was wrong in
denying DHS’ request to be discharged as A.S.’s permanent
custodian, after ordering DHS not to place AS with her
maternal aunt. . . .

DHS requested that the ICA “reverse the family court’s placement

ruling, and issue orders authorizing DHS to place AS with her

maternal aunt or remand to the family court to issue such

orders.” In the alternative, DHS requested that the ICA “reverse

the family court’s denial of its request to be discharged as

A.S.’s permanent custodian, and issue orders granting DHS’

request or remand to the family court to issue such orders.” The

Foster Parents and the VGAL, on the other hand, asked the ICA to

affirm the decision of the family court.

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The ICA affirmed the family court in a published opinion. In

re AS, 130 Hawai#i 486, 312 P.3d 1193. The ICA summarized the

family court’s review of DHS’s placement decision as follows:

The family court ultimately applied a two-prong standard of
review that involved (1) independently deciding whether
DHS’s placement decision was in AS’s best interest; and (2)
if the court found the placement was not in AS’s best
interest, reviewing DHS’s placement decision for an abuse of
discretion, which meant deciding whether DHS’s “best-
interests” determination was clearly erroneous based on a
preponderance of the evidence.

In re AS, 130 Hawai#i at ____, 312 P.3d at 1210. The ICA noted

that the family court based its standard of review determination

on In re Doe, 7 Haw. App. 547, 557-58, 784 P.2d 873, 880

(1989)(“1989 Doe”), which noted, “[T]he decision as to what

custodial arrangements are in the best interest of a specific

child is a matter for the court’s discretion,” then held that

decision “is a matter or question of ultimate fact reviewable

under the clearly erroneous standard of review.” In re AS, 130

Hawai#i at ____, 312 P.3d at 1210, 1212. The ICA then overruled

this holding in 1989 Doe as applied to the family court’s review

of DHS’s determination that a certain placement is in a child’s

best interests, but it left the holding intact as applied to

appellate review of a family court’s decision as to which

placement is in a child’s best interests. In re AS, 130 Hawai#i

at ____, 312 P.3d at 1213, 1213 n.18. The ICA concluded that the

family court, “based on the evidence presented, must make its own

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determination regarding whether the placement of the child is in

the child’s best interest.” In re AS, 130 Hawai#i at ____, 312

P.3d at 1213.

With regard to DHS’s argument that the burden is on the

party challenging DHS’s permanent placement decision to prove

that DHS abused its placement discretion under HRS § 587A-

15(d)(2) (Supp. 2010)5, the ICA held that the statute

“characterizes DHS’s permanent placement authority as a ‘duty’

and a ‘right,’ but nowhere suggests that DHS may exercise that

authority in its discretion.” In re AS, 130 Hawai#i at ____, 312

P.3d at 1215 (footnote omitted). The ICA contrasted DHS’s

placement authority under HRS § 587A-15(d)(2) with other

provisions of the CPA that do characterize DHS’s decisions as

discretionary: HRS §§ 587A-9 (Supp. 2010) (“Temporary foster

custody without court order”), -15(c)(1)(Supp. 2010) (“Duties,

rights, and liability of authorized agencies”), and -26(e)(3)

(“Temporary foster custody hearing”) (Supp. 2010). In re AS, 130

Hawai#i at ____, 312 P.3d at 1215. The ICA then “presume[d] the

legislature intentionally declined to vest DHS with discretion to

make placement decisions.” In re AS, 130 Hawai#i at ____, 312

5
HRS § 587A-15 is entitled “Duties, rights, and liability of authorized
agencies.” HRS § 587A-15(d)(2) provides, “If an authorized agency has
permanent custody, it has the following duties and rights: . . . Determining
where and with whom the child shall live; provided that the child shall not be
placed outside the State without prior order of the court[.]”

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P.3d at 1215 (citation omitted). The ICA concluded that the

family court’s review of DHS’s placement decision for an abuse of

discretion was error, but that such error was harmless. Id.

The ICA next rejected DHS’s argument that state and federal

law contain a relative placement preference. In re AS, 130

Hawai#i at ____, 312 P.3d at 1216-19. The ICA held that HRS §§

587A-2 (Supp. 2010)(“Purpose; construction”), -7 (Supp. 2010)

(“Safe family home factors”), -10 (Supp. 2010)(“Relatives; foster

placement”), and -26(e)(2) (“Temporary foster custody hearing”)

do not contain an explicit or mandatory preference in favor of

relative placements. In re AS, 130 Hawai#i at ____, 312 P.3d at

1218. The ICA noted only HRS § 587A-9, which pertains to

temporary foster custody without court order, expressly contains

a relative placement preference. Id. (citing HRS § 587A-9, which

provides, in relevant part, “Unless the child is admitted to a

hospital or similar institution, [DHS shall] place the child in

emergency foster care while the department conducts an

appropriate investigation, with placement preference being given

to an approved relative.” (emphasis added)).

The ICA also stated that In re Doe, 103 Haw. 130, 136-37, 80

P.3d 20, 26-27 (App. 2003)(“November 2003 Doe”), already ruled

that there is no relative placement preference in the CPA’s

purpose clause, following 1998 amendments emphasizing the child’s

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safety and best interests over reunification with family. In re

AS, 130 Hawai#i at ____, 312 P.3d at 1218-19. To that end, the

ICA rejected DHS’s argument that 1989 Doe, 7 Haw. App. 547, 556,

784 P.2d 873, 879, which stated that “HRS Chapter 587 accords

priority to the child’s family” remained good law following

November 2003 Doe. In re AS, 130 Hawai#i at ____, 312 P.3d at

1219. The ICA also observed that “[n]othing in [the current CPA

purpose clause] or its legislative history suggests that the

emphasis on a child’s safety and best interests no longer takes

precedence over a preference for family placements.” Id.

Moreover, the ICA noted, “[a]ssuming there was a preference for

relative placement, it would not super[s]ede ‘best interest’

considerations.” In re AS, 130 Hawai#i at ___, 312 P.3d at 1218

(citations omitted).

As to whether federal law contained a relative placement

preference, the ICA concluded, “DHS does not cite to any

authority to support the notion that this exercise of Congress’s

Spending Power required the family court to accept DHS’s

placement recommendation, and nothing in HRS Chapter 587A or in

any case law construing Chapter 587A suggests that it does.” In

re AS, 130 Hawai#i at ____, 312 P.3d at 1219. The ICA did not

address the authorities DHS cited in its Opening Brief: Title IV-

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E of the Social Security Act (42 U.S.C. §§ 670 to 679c (2011));

Section 5 of the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, P.L. 104-193, 110 Stat. 2105; the

Fostering Connections to Success and Increasing Adoptions Act of

2008, P.L. 110-351, 122 Stat. 3949; or 45 C.F.R. § 1355.34

(2012).

As to DHS’s argument that the family court failed to

consider the passage of time caused by DHS to give Father the

opportunity to reunify with AS on Oahu, the ICA held, “DHS has

not shown and we find no evidence that the court failed to

consider any of the delays” in AS’s placement decision. In re

AS, 130 Hawai#i at ____, 312 P.3d at 1222.

Lastly, with regard to DHS’s argument that the family court

should have revoked its permanent custodianship after concluding

that the agency abused its discretion in making its placement

recommendation, the ICA stated that DHS misused March 2003 Doe,

101 Hawai’i at 229, 65 P.3d at 176. In re AS, 130 Hawai#i at

____, 312 P.3d at 1224. The ICA stated, “The supreme court never

held that where the family court rejects a DHS placement

recommendation, the supreme court should revoke DHS’s custody.”

Id.

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III. Discussion

A. Standard of Proof

We address DHS’s second question presented first. On

certiorari, DHS’s second question presented is

2. Did the ICA commit grave errors of law in ruling that
the standard and burden of the family court’s review of DHS’
permanent placement decision required DHS to prove that its
permanent placement decision was in the child’s best
interest, instead of placing the burden on the person
challenging DHS’ placement decision to prove that DHS abused
its discretion in making its assessment? Was the ICA’s
ruling also inconsistent with the Supreme Court’s ruling in
In re Doe[,] 101 Haw. 220, 231, 65 P.3d 167, 178 (2003)?

DHS continues to argue on certiorari that the family court’s

standard of review of its placement decisions is based on an

abuse of discretion standard. DHS asserts the party challenging

DHS’s placement decision carries the burden of proving that DHS

abused its discretion in determining which placement is in the

child’s best interests. DHS therefore argues that the ICA failed

to follow the doctrine of stare decisis when it overruled 1989

Doe in part because it failed to provide a compelling

justification to overturn the decision.

The ICA correctly overruled 1989 Doe in part. In that case,

the VGAL appealed the family court’s decision allowing DHS to

remove a minor from foster parents, who desired to adopt the

minor, to be placed with family members who were planning on

adopting the minor’s two brothers. 7 Haw. App. at 548, 551-52,

784 P.2d at 875, 877. The ICA first noted that the proper

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appellate standard for reviewing the family court’s child custody

decisions was as follows: “[T]he decision as to what custodial

arrangements are in the best interests of a specific child is a

matter for the court’s discretion.” 7 Haw. App. at 557, 784 P.2d

at 880 (emphasis added). The ICA characterized the best

interests decision as “a matter or question of ultimate fact

reviewable under the clearly erroneous standard of review.” 7

Haw. App. at 558, 784 P.2d at 880. DHS interprets 1989 Doe as

granting it the same kind of “discretion” in placement decisions

made in a child’s best interests that requires a quasi-appellate

finding of “abuse of discretion” to overcome.

The current CPA and November 2003 Doe, however, do not

require the family court to review DHS’s permanent placement

decisions in this way. First, HRS § 587A-31(c)(2) (Supp. 2010),

entitled “Permanency hearing,” provides the following (with

emphasis added): “At each permanency hearing, the court shall

make written findings pertaining to: . . . Whether the current

placement of the child continues to be appropriate and in the

best interests of the child or if another in-state or out-of-

state placement should be considered. . . .” This statutory

provision requires the family court to make its own independent

determination of the child’s best interests in a permanent

placement.

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Second, in November 2003 Doe, 103 Hawai’i at 134-35, 80 P.3d

at 24-25, a mother who had lost her parental rights argued that

the family court should not have ordered DHS to keep the subject

children in their current foster home because she

believed it was in their best interests to be placed with

mainland relatives. Similarly to DHS in this case, the mother

argued “‘[W]hen DHS has permanent custody, it is authorized by

HRS § 587-2 “to determine where and with whom the child shall

live,”’ and, therefore, the family court abused its discretion

when it ordered that ‘the Children are not to be removed from

their current foster family placements without prior Court

approval.’” 103 Hawai#i at 140, 80 P.3d at 30. The ICA in that

case disagreed, stating, “[T]he permanent custodian’s ‘duties and

rights of a legal custodian and family member’ are subject to the

ultimate control of the family court.” Id. Thus, the similarly

worded current statute, HRS § 587A-15(d)(2), which states that

DHS, as a permanent custodian, has the “dut[y] and right” to

“[d]etermin[e] where and with whom the child shall live,” is also

“subject to the ultimate control of the family court,” which is

authorized and required, under HRS § 587A-31(c)(2), to review a

permanent plan to determine whether “the current placement of the

child continues to be appropriate and in the best interests of

the child or if another in-state or out-of-state placement should

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be considered. . . .” (Emphasis added.) In short, the family

court is not required to determine whether DHS abused its

discretion in making a placement determination in a child’s best

interests. Rather, the current CPA and case law authorize and

require the family court to make its own best interests

determination. Cogent and compelling reasons supported the ICA’s

decision to overrule 1989 Doe to the extent that case held

otherwise.

We clarify the ICA’s opinion, however, and extend it to hold

that, as in this case, where a party challenges DHS’s permanent

placement determination, that party bears the burden of proving,

by a preponderance of the evidence, that DHS’s permanent

placement determination is not in the best interests of the

child. This is because DHS is charged with administering child

welfare services in the state, and its social workers are

presumed to be experts on child protection and child welfare.

See HRS § 326-51 (1993 & Supp. 2008); HRS § 587A-19 (Supp. 2010).

As such, the burden of proof, resting with the party contesting

DHS’s permanent placement recommendation, is a preponderance of

the evidence. See HRS § 587A-4 (Supp. 2010)(“‘Preponderance of

the evidence’ means the degree of proof, which as a whole,

convinces the trier of fact that the fact sought to be proved is

more probable than not. ‘Preponderance of the evidence’ shall be

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the standard of proof required in any proceeding, unless

otherwise specified.”)

B. Placement Discretion

On certiorari, DHS’s first question presented is

1. In ruling that DHS, as the permanent custodian of a
child, did not have the discretion to determine a child’s
placement, did the ICA commit grave errors of law by:
a) Disregarding (and overturning) the Hawaii Supreme
Court’s ruling in In re Doe, 100 Haw. 335, 346 & [n.]19, 60
P.3d 285, 296 & [n.]19 (2002) that held when DHS is
appointed the permanent custodian of a child, DHS has the
discretion to determine the child’s permanent placement?
b) Violating the rules of statutory interpretation
when it erroneously held that while HRS § 587A-15(d)(2) gave
DHS, as a child’s permanent custodian, the duty and
authority to determine a child’s placement, DHS had no
discretion because of the absence of the word “discretion?”
Does the ICA’s holding create absurd results, such as making
the Judiciary, instead of DHS, the primary child-placing
agency when children are placed in temporary foster, foster
and permanent custody, notwithstanding contrary statutory
language and legislative intent?

DHS characterizes the ICA’s observation (that HRS § 587A-15(d)(2)

does not contain the word “discretion”) as separate from the

ICA’s holding that the family court does not review DHS’s

permanent placement determinations under an abuse of discretion

standard. When read in context, however, the ICA’s statement

arose as part of its discussion about the standard under which

DHS’s placement determinations are to be reviewed by the family

court. In re AS, 130 Hawai#i at ____, 312 P.3d at 1215.

Therefore, we reject DHS’s argument that the ICA’s opinion

stripped DHS of its discretion, in the first instance, to place

children in the agency’s foster and permanent custody. In order

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to exercise its statutory “duty” and “right” to determine “where

and with whom the child shall live,” pursuant to HRS § 587A-

15(d)(2), DHS must necessarily be free as an agency, with its

particular expertise in child welfare, to make choices among

living arrangements, subject to an independent best interests

review by the family court.

As such, we agree with DHS that In re Doe, 100 Haw. 335,

346, 346 n.19, 60 P.3d 285, 296, 296 n.19 (2002), has already

held that DHS has the discretion to make permanent placement

decisions. That case noted the following: “[U]pon the

termination of parental rights, discretion to determine an

appropriate custodian is vested in DHS. . . . After termination

of rights, custody is given to DHS which is charged with finding

a suitable home for the child.” Id. (citation omitted). As

explained, supra, in Section III.A, this placement determination

is, however, subject to review by the family court, which is

authorized and required by law to determine whether the placement

is in the child’s best interests.

C. Relative Placement Preference in State and Federal Law

On certiorari, DHS’s third question presented is

3. Did the ICA commit grave errors of law in ruling that
Federal and Hawaii law did not create relative/family
placement preferences for children in foster care, including
those in the permanent custody of DHS?

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1. Federal Law

On certiorari, DHS argues, “Congress enacted legislation

granting the States money on the condition that they comply with

Federal child protection/welfare laws. . . .” We now discuss

whether the federal authorities DHS cites (Title IV-E of the

Social Security Act (42 U.S.C. §§ 670 to 679c (2011)); Section 5

of the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, P.L. 104-193, 110 Stat. 2105; the

Fostering Connections to Success and Increasing Adoptions Act of

2008, P.L. 110-351, 122 Stat. 3949; or 45 C.F.R. § 1355.34

(2012)) condition the receipt of federal funds upon permanent

placement with relatives. We hold they do not.

First, DHS argues that one section of Title IV-E, 42 U.S.C.

§ 671(a)(19)(2011), which was added via Section 5 of the Personal

Responsibility and Work Opportunity Reconciliation Act of 1996,

P.L. 104-193, 110 Stat. 2105, contains the federal relative

placement preference. That statute provides that “the state

shall consider giving preference to an adult relative over a non-

related caregiver when determining a placement for a child,

provided that the relative caregiver meets all relevant State

child protective standards[.]” The word “consider” indicates

that relative placement must factor into a placement decision,

but it does not mandate relative placement. Therefore, 42 U.S.C.

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§ 671(a)(19) does not condition the receipt of Title IV-E funds

on relative placement.

Second, as relevant to this appeal, the amendments made to

Title IV-E by the Fostering Connections to Success and Increasing

Adoptions Act of 2008, P.L. 110-351, 122 Stat. 3949, do not

condition Title IV-E funds upon relative placement. 42 U.S.C. §

671(a) (2011) states, “In order for a State to be eligible for

payments under this part [42 USCS §§ 670 et seq.], it shall have

a plan approved by the Secretary. . . .” Features of this “State

plan for foster care and adoption assistance” include “a waiver

of [certain foster home standards] made only on a case-by-case

basis for non-safety standards (as determined by the State) in

relative foster family homes for specific children in care. . .

.” 42 U.S.C. § 671(a)(10); child abuse and neglect and criminal

records checks on any relative guardian before kinship guardian

assistance payments are made, 42 U.S.C. § 671(a)(20)(C); “kinship

guardianship assistance agreements to provide kinship

guardianship assistance payments on behalf of children to

grandparents and other relatives who have assumed legal

guardianship of the children for whom they have cared as foster

parents and for whom they have committed to care on a permanent

basis. . . .” 42 U.S.C. § 671(a)(28); and “notice to all adult

grandparents and other adults relatives of the child” that the

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child has been removed from parental custody and explaining

options for kinship care. 42 U.S.C. § 671(a)(29). None of these

provisions for State plans conditions receipt of federal funds on

a relative placement preference.

Further, 42 U.S.C. § 673(d)(2011), as amended by the

Fostering Connections to Success and Increasing Adoptions Act of

2008, created kinship guardianship assistance payments for

relatives providing foster care. That section makes eligibility

for such payments dependent upon the child’s attachment to the

relative, and the relative’s strong commitment towards the child,

but does not reflect a relative placement preference.6 Next, 42

6
42 U.S.C. § 673(d) reads in full as follows (with emphasis added):
(d) Kinship guardianship assistance payments for children.
(1) Kinship guardianship assistance agreement.
(A) In general. In order to receive payments under
section 474(a)(5) [42 USCS § 674(a)(5)], a State shall--
(i) negotiate and enter into a written, binding
kinship guardianship assistance agreement with the
prospective relative guardian of a child who meets the
requirements of this paragraph; and
(ii) provide the prospective relative guardian with
a copy of the agreement.
(B) Minimum requirements. The agreement shall specify,
at a minimum--
(i) the amount of, and manner in which, each
kinship guardianship assistance payment will be provided
under the agreement, and the manner in which the payment may
be adjusted periodically, in consultation with the relative
guardian, based on the circumstances of the relative
guardian and the needs of the child;
(ii) the additional services and assistance that
the child and relative guardian will be eligible for under
the agreement;
(iii) the procedure by which the relative guardian
may apply for additional services as needed; and
(continued...)

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6
(...continued)
(iv) subject to subparagraph (D), that the State
will pay the total cost of nonrecurring expenses associated
with obtaining legal guardianship of the child, to the
extent the total cost does not exceed $ 2,000.
(C) Interstate applicability. The agreement shall
provide that the agreement shall remain in effect without
regard to the State residency of the relative guardian.
(D) No effect on Federal reimbursement. Nothing in
subparagraph (B)(iv) shall be construed as affecting the
ability of the State to obtain reimbursement from the
Federal Government for costs described in that subparagraph.
(2) Limitations on amount of kinship guardianship
assistance payment. A kinship guardianship assistance
payment on behalf of a child shall not exceed the foster
care maintenance payment which would have been paid on
behalf of the child if the child had remained in a foster
family home.
(3) Child’s eligibility for a kinship guardianship
assistance payment.
(A) In general. A child is eligible for a kinship
guardianship assistance payment under this subsection if the
State agency determines the following:
(i) The child has been--
(I) removed from his or her home pursuant to a
voluntary placement agreement or as a result of a judicial
determination to the effect that continuation in the home
would be contrary to the welfare of the child; and
(II) eligible for foster care maintenance
payments under section 472 [42 USCS § 672] while residing
for at least 6 consecutive months in the home of the
prospective relative guardian.
(ii) Being returned home or adopted are not
appropriate permanency options for the child.
(iii) The child demonstrates a strong attachment to
the prospective relative guardian and the relative guardian
has a strong commitment to caring permanently for the child.
(iv) With respect to a child who has attained 14
years of age, the child has been consulted regarding the
kinship guardianship arrangement.
(B) Treatment of siblings. With respect to a child
described in subparagraph (A) whose sibling or siblings are
not so described--
(i) the child and any sibling of the child may be
placed in the same kinship guardianship arrangement, in
accordance with section 471(a)(31) [42 USCS § 671(a)(31)],
(continued...)

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U.S.C. § 675(1)(E) (2011) envisions permanent placements with

persons other than relatives, with placement decisions explained

in the child’s case plan.7 In the case of a child permanently

placed with relatives, 42 U.S.C. § 675(1)(F) (2011) requires a

written case plan describing the rationale behind the child’s

placement as well.8 None of these federal statutory provisions

6
(...continued)
if the State agency and the relative agree on the
appropriateness of the arrangement for the siblings; and
(ii) kinship guardianship assistance payments may
be paid on behalf of each sibling so placed.

7
42 U.S.C. § 675(1)(E) reads in full as follows (with emphasis added):
(1) The term “case plan” means a written document which
includes at least the following: . . . (E) In the case of a
child with respect to whom the permanency plan is adoption
or placement in another permanent home, documentation of the
steps the agency is taking to find an adoptive family or
other permanent living arrangement for the child, to place
the child with an adoptive family, a fit and willing
relative, a legal guardian, or in another planned permanent
living arrangement, and to finalize the adoption or legal
guardianship. At a minimum, such documentation shall include
child specific recruitment efforts such as the use of State,
regional, and national adoption exchanges including
electronic exchange systems to facilitate orderly and timely
in-State and interstate placements.

8
42 U.S.C. § 675(1)(F) reads in full as follows:
(1) The term “case plan” means a written document which
includes at least the following: . . . (F) In the case of a
child with respect to whom the permanency plan is placement
with a relative and receipt of kinship guardianship
assistance payments under section 473(d) [42 USCS § 673(d)],
a description of--
(i) the steps that the agency has taken to
determine that it is not appropriate for the child to be
returned home or adopted;
(ii) the reasons for any separation of siblings
during placement;
(iii) the reasons why a permanent placement with a
fit and willing relative through a kinship guardianship
assistance arrangement is in the child’s best interests;
(continued...)

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reflects a relative placement preference. DHS overstates the

impact of the Fostering Connections to Success and Increasing

Adoptions Act of 2008, which amended each of the foregoing

sections.

Third, the regulations implementing Title IV-E do not show

that Title IV-E funds are conditioned upon relative placement.

It is true that 45 C.F.R. § 1355.34(b)(ii)(B) (2012) provides the

following: “(b) Criteria related to outcomes. . . . (ii) In the

area of permanency for children: . . . (B) The continuity of

family relationships and connections is preserved for children. .

. .” This language encourages continuous family relationships

but does not mandate relative placement. Moreover, 45 C.F.R. §

1355.25 provides, with emphasis added:

The following principles, most often identified by
practitioners and others as helping to assure effective
services for children, youth, and families, should guide the
States . . . in developing, operating, and improving the
continuum of child and family services. (a) The safety and
well-being of children and of all family members is
paramount.

8
(...continued)
(iv) the ways in which the child meets the
eligibility requirements for a kinship guardianship
assistance payment;
(v) the efforts the agency has made to discuss
adoption by the child’s relative foster parent as a more
permanent alternative to legal guardianship and, in the case
of a relative foster parent who has chosen not to pursue
adoption, documentation of the reasons therefor; and
(vi) the efforts made by the State agency to
discuss with the child’s parent or parents the kinship
guardianship assistance arrangement, or the reasons why the
efforts were not made.

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Thus, like Hawaii’s CPA, Title IV-E of the Social Security Act,

along with its implementing regulations, encourages relative

placements but considers the child’s safety to be an overriding

concern.

Lastly, even Title IV-E recognizes the authority of State

courts over protected children under their jurisdiction. 42

U.S.C. § 678 states, “Nothing in this part [42 USCS §§ 670 et

seq.] shall be construed as precluding State courts from

exercising their discretion to protect the health and safety of

children in individual cases. . . .” In sum, there is no federal

relative placement preference that DHS was compelled to carry out

under Congress’s spending power.

2. State Law

We agree with the ICA’s conclusion that there is no relative

placement preference in HRS §§ 587A-29, -710, 1011, and 26(e)(2)12.
9
HRS § 587A-2 provides the following:
Purpose; construction. This chapter creates within the
jurisdiction of the family court a child protective act to
make paramount the safety and health of children who have
been harmed or are in life circumstances that threaten
harm. Furthermore, this chapter makes provisions for the
service, treatment, and permanent plans for these children
and their families.
The legislature finds that children deserve and require
competent, responsible parenting and safe, secure, loving,
and nurturing homes. The legislature finds that children
who have been harmed or are threatened with harm are less
likely than other children to realize their full
educational, vocational, and emotional potential, and become
law-abiding, productive, self-sufficient citizens, and are
more likely to become involved with the mental health
system, the juvenile justice system, or the criminal justice
system, as well as become an economic burden on the State.
(continued...)

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9
(...continued)
The legislature finds that prompt identification, reporting,
investigation, services, treatment, adjudication, and
disposition of cases involving children who have been harmed
or are threatened with harm are in the children’s, their
families’, and society’s best interests because the children
are defenseless, exploitable, and vulnerable. The
legislature recognizes that many relatives are willing and
able to provide a nurturing and safe placement for children
who have been harmed or are threatened with harm.
The policy and purpose of this chapter is to provide
children with prompt and ample protection from the harms
detailed herein, with an opportunity for timely
reconciliation with their families if the families can
provide safe family homes, and with timely and appropriate
service or permanent plans to ensure the safety of the child
so they may develop and mature into responsible, self-
sufficient, law-abiding citizens. The service plan shall
effectuate the child’s remaining in the family home, when
the family home can be immediately made safe with services,
or the child’s returning to a safe family home. The service
plan shall be carefully formulated with the family in a
timely manner. Every reasonable opportunity should be
provided to help the child’s legal custodian to succeed in
remedying the problems that put the child at substantial
risk of being harmed in the family home. Each appropriate
resource, public and private, family and friend, should be
considered and used to maximize the legal custodian’s
potential for providing a safe family home for the child.
Full and careful consideration shall be given to the
religious, cultural, and ethnic values of the child’s legal
custodian when service plans are being discussed and
formulated. Where the court has determined, by clear and
convincing evidence, that the child cannot be returned to a
safe family home, the child shall be permanently placed in a
timely manner.
The policy and purpose of this chapter includes the
protection of children who have been harmed or are
threatened with harm by:
(1) Providing assistance to families to address the causes
for abuse and neglect;
(2) Respecting and using each family’s strengths,
resources, culture, and customs;
(3) Ensuring that families are meaningfully engaged and
children are consulted in an age-appropriate manner in case
planning;
(4) Enlisting the early and appropriate participation of
family and the family’s support networks;
(5) Respecting and encouraging the input and views of
caregivers; and
(6) Ensuring a permanent home through timely adoption or
other permanent living arrangement,
if safe reunification with the family is not possible.
(continued...)

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We agree with the ICA that HRS § 587A-9 expresses a relative

preference in emergency, temporary foster care placements. In re

AS, 130 Hawai#i at ___, 312 P.3d at 1218. That statute provides

the following, with emphasis added:

Temporary foster custody without court order. (a) When the
department receives protective custody of a child from the
police, the department shall:
(1) Assume temporary foster custody of the child if, in the
discretion of the department, the department determines that

9
(...continued)
The child protective services under this chapter shall
be provided with every reasonable effort to be open,
accessible, and communicative to the persons affected by a
child protective proceeding without endangering the safety
and best interests of the child under this chapter.
This chapter shall be liberally construed to serve the
best interests of the children affected and the purpose and
policies set forth herein.

10
Specifically, DHS argues that HRS §§ 587A-7(a)(10) and (11) express a
relative placement preference. HRS § 587A-7(a)(10) and (11) direct the family
court to consider the following factors when determining whether a child’s
family is willing and able to provide the child with a safe family home:
“Whether there is a support system available to the child’s family, including
adoptive and hanai relatives, friends, and faith-based or other community
networks[,]” and “[a]ttempts to locate and involve extended family, friends,
and faith-based or other community networks[,]” respectively.

11
HRS § 587A-10 provides the following:
Relatives; foster placement. (a) The department shall
provide the child’s relative an application to be the
child’s resource family within fifteen days of the
relative’s request to provide foster placement for the
child. If the application is submitted and denied, the
department shall provide the applicant with the specific
reasons for the denial and an explanation of the procedures
for an administrative appeal.
(b) The department and authorized agencies shall make
reasonable efforts to identify and notify all relatives of
the child within thirty days after assuming foster custody
of the child.

12
HRS § 587A-26(e)(2) provides the following at a temporary foster custody
hearing: “The court may further order that: . . . The child’s family members
who are parties provide the department or another authorized agency the names
and addresses of other relatives and friends who are potential visitation
supervisors or resource families for the child[.]”

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the child is subject to imminent harm while in the custody
of the child’s family;
(2) Make every reasonable effort to inform the child’s
parents of the actions taken, unless doing so would put
another person at risk of harm;
(3) Unless the child is admitted to a hospital or similar
institution, place the child in emergency foster care while
the department conducts an appropriate investigation, with
placement preference being given to an approved relative;
(4) With authorized agencies, make reasonable efforts to
identify and notify all relatives within thirty days of
assuming temporary foster custody of the child; and
(5) Within three days, excluding Saturdays, Sundays, and
holidays:
(A) Relinquish temporary foster custody, return the child
to the child’s parents, and proceed pursuant to section
587A-11(3), 587A-11(4), or 587A-11(5);
(B) Secure a voluntary placement agreement from the child’s
parents to place the child in foster care, and proceed
pursuant to section 587A-11(5) or 587A-11(7); or
(C) File a petition with the court.
(b) Upon the request of the department and without
regard to parental consent, any physician licensed or
authorized to practice medicine in the State shall perform
an examination to determine the nature and extent of harm or
threatened harm to the child under the department’s
temporary foster custody.

We also note that HRS § 587A-11 reflects a relative preference in

emergency, temporary foster care placements. That statute

provides the following, with emphasis added:

Investigation; department powers. Upon receiving a report
that a child is subject to imminent harm, has been harmed,
or is subject to threatened harm, the department shall cause
such investigation to be made as it deems to be
appropriate. In conducting the investigation, the
department may:
(1) Enlist the cooperation and assistance of appropriate
state and federal law enforcement authorities, who may
conduct an investigation and, if an investigation is
conducted, shall provide the department with all preliminary
findings, including the results of a criminal history record
check of an alleged perpetrator of harm or threatened harm
to the child;
(2) Interview the child without the presence or prior
approval of the child’s family and temporarily assume
protective custody of the child for the purpose of
conducting the interview;
(3) Resolve the matter in an informal fashion that it deems
appropriate under the circumstances;

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(4) Close the matter if the department finds, after an
assessment, that the child is residing with a caregiver who
is willing and able to meet the child’s needs and provide a
safe and appropriate placement for the child;
(5) Immediately enter into a service plan:
(A) To safely maintain the child in the family home; or
(B) To place the child in voluntary foster care pursuant to
a written agreement with the child’s parent.
If the child is placed in voluntary foster care and the
family does not successfully complete the service plan
within three months after the date on which the department
assumed physical custody of the child, the department shall
file a petition. The department is not required to file a
petition if the parents agree to adoption or legal
guardianship of the child and the child’s safety is ensured;
provided that the adoption or legal guardianship hearing is
conducted within six months of the date on which the
department assumed physical custody of the child;
(6) Assume temporary foster custody of the child and file a
petition with the court within three days, excluding
Saturdays, Sundays, and holidays, after the date on which
the department assumes temporary foster custody of the
child, with placement preference being given to an approved
relative; or
(7) File a petition or ensure that a petition is filed by
another appropriate authorized agency in court under this
chapter.

HRS §§ 587A-9(a)(3) and -11(6) reflect a relative preference in

emergency, temporary foster care placements. As such, these

provisions of the CPA carry out 42 U.S.C. § 671(a)(19)’s

requirement that the States “consider giving preference to an

adult relative over a non-related caregiver when determining a

placement for a child, provided that the relative caregiver meets

all relevant State child protective standards[.]”

No such relative preference exists, however, with regard to

permanent placements like the one at bar. Instead, HRS § 587A-31

(Supp. 2010), which governs permanent placement, provides for a

best interests review of the child’s current placement, and

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envisions future placement options as within an adoptive home,

with a legal guardian, or with the department or an authorized

agency, but not expressly with a relative:

Permanency hearing. (a) A permanency hearing shall be
conducted within twelve months of the child’s date of entry
into foster care or within thirty days of a judicial
determination that the child is an abandoned infant or that
aggravated circumstances are present. A permanency hearing
shall be conducted at least every twelve months thereafter
for as long as the child remains in foster care under the
placement responsibility of the department or an authorized
agency, or every six months thereafter if the child remains
in the permanent custody of the department or an authorized
agency.
(b) The court shall review the status of the case to
determine whether the child is receiving appropriate
services and care, that case plans are being properly
implemented, and that activities are directed toward a
permanent placement for the child.
(c) At each permanency hearing, the court shall make
written findings pertaining to:
(1) The extent to which each party has complied with the
service plan and progressed in making the home safe;
(2) Whether the current placement of the child continues to
be appropriate and in the best interests of the child or if
another in-state or out-of-state placement should be
considered;
(3) The court’s projected timetable for reunification or,
if the current placement is not expected to be permanent,
placement in an adoptive home, with a legal guardian, or
under the permanent custody of the department or an
authorized agency;
(4) Whether the department has made reasonable efforts, in
accordance with the safety and well-being of the child, to:
(A) Place siblings who have been removed from the family
home with the same resource family, adoptive placement, or
legal guardians; and
(B) Provide for frequent visitation or other ongoing
interactions with siblings who are not living in the same
household;
(5) The appropriate permanency goal for the child,
including whether a change in goal is necessary;
(6) Whether the department has made reasonable efforts to
finalize the permanency goal in effect for the child and a
summary of those efforts;
(7) The date by which the permanency goal for the child is
to be achieved;
(8) In the case of a child who has attained sixteen years
of age, the services needed to assist the child with the
transition from foster care to independent living; and

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(9) Consultations with the child in an age-appropriate
manner about the proposed plan for permanency or transition
from foster care to independent living.
(d) At each permanency hearing, the court shall order:
(1) The child’s reunification with a parent or parents;
(2) The child’s continued placement in foster care, where:
(A) Reunification is expected to occur within a time frame
that is consistent with the developmental needs of the
child; and
(B) The safety and health of the child can be adequately
safeguarded; or
(3) A permanent plan with a goal of:
(A) Placing the child for adoption and when the department
will file a motion to set the matter for the termination of
parental rights;
(B) Placing the child for legal guardianship if the
department documents and presents to the court a compelling
reason why termination of parental rights and adoption are
not in the best interests of the child; or
(C) Awarding permanent custody to the department or an
authorized agency, if the department documents and presents
to the court a compelling reason why adoption and legal
guardianship are not in the best interests of the child.
(e) At each permanency hearing where a permanent plan
is ordered, the court shall make appropriate orders to
ensure timely implementation of the permanent plan and to
ensure that the plan is accomplished within a specified
period of time.
(f) A permanency hearing may be held concurrently with
a periodic review hearing.
(g) If the child has been in foster care under the
responsibility of the department for a total of twelve
consecutive months or an aggregate of fifteen out of the
most recent twenty-two months from the date of entry into
foster care, the department shall file a motion to terminate
parental rights, unless:
(1) The department has documented in the safe family home
factors or other written report submitted to the court a
compelling reason why it is not in the best interest of the
child to file a motion; or
(2) The department has not provided to the family of the
child, consistent with the time period required in the
service plan, such services as the department deems
necessary for the safe return of the child to the family
home.
(h) Nothing in this section shall prevent the
department from filing a motion to terminate parental rights
if the department determines that the criteria for
terminating parental rights are present.

(Emphasis added).

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We also expand upon the ICA’s opinion to explain how HRS §

587A-2 (the purpose and construction section of the CPA) has

changed through time and thus cannot be the current state

statutory source of any relative placement preference. As

originally codified in 1983, the CPA’s purpose clause called for

reunification of foster children with their families where

possible:

Purpose; construction. This chapter creates within the
jurisdiction of the family court a child protective act in
order to safeguard, treat, and provide permanent planning
for children who have been harmed or threatened with harm.
The legislature finds that children deserve and
require competent and responsible parenting and safe and
secure homes. The legislature finds that children who have
been harmed or threatened with harm are less likely than
other children to realize their full educational,
vocational, and emotional potential, and become law-abiding,
productive, self-sufficient citizens, and are more likely to
become involved with the mental health system, the juvenile
justice system, or the criminal justice system, as well as
become an economic burden on the State. The legislature
finds that prompt identification, reporting, investigation,
adjudication, treatment, and disposition of cases involving
children who are harmed or threatened with harm are in both
the children’s and society’s best interests because such
children are defenseless, exploitable, and vulnerable.
The policy and purpose of this chapter is to provide
children with prompt and ample protection from the harms
detailed herein, with an opportunity for timely
reconciliation with their families where practicable, and
with timely and permanent planning so they may develop and
mature into responsible, self-sufficient, law-abiding
citizens. This permanent planning should effectuate
placement with a child’s own family when possible and should
be conducted in an expeditious fashion so that where return
to the child’s family is not possible as provided in this
chapter, such children will be promptly and permanently
placed with responsible, competent, substitute parents and
families, and their place in such families secured by
termination of parental rights, adoption, guardianship,
long-term foster custody orders, if no other option is
available, by other order of the court, or arrangement as
best provides for permanency.

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This chapter shall be liberally construed to serve the
best interests of the children and the purposes set out in
this chapter.

HRS § 587-1 (1985)(emphases added). In 1989 Doe, the ICA held

that HRS Chapter 587 (1985) “accords priority to the child’s

family. . . .” 7 Haw. App. at 556, 784 P.2d at 879. In re Doe

Children, 73 Haw. 15, 20-21, 827 P.2d 1144, 1146-47 (1992), also

construed HRS § 587-1 (1985) as stating “a clear preference for

keeping families together if possible where the difficulties

being faced by the families can be resolved,” and as having as

its stated purpose “an emphasis on maintaining the family unit.”

In November 2003 Doe, however, we observed that the

legislature “substantially amended HRS § 587-1 and the policy of

the law” in 1998. 103 Hawai#i at 136, 80 P.3d at 26. The 1998

amendment was based on the following legislative finding:

Recent trends across the country in dealing with [child
abuse] have been to provide alternatives to the traditional
philosophy of returning the abused child to the natural
family, which may not be in the best interests of the
child’s safety. Providing a child with a safe home should
be the ultimate concern, regardless of whether a safe home
be the natural family, adoptive family, or foster family.

1998 Haw. Sess. Laws Act 134, § 1 at 504. In line with its new

focus on the child’s safety, the following language was added to

HRS § 587-1, supplanting family reunification as the CPA’s goal:

“to make paramount the safety and health of children who have

been harmed or are in life circumstances that threaten harm.”

1998 Haw. Sess. Laws Act 134, § 6 at 506.

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DHS argues that 2008 amendments to HRS § 587-1 restored the

family placement preference. It is true that the 2008

legislature added the following language to HRS § 587-1: “The

legislature recognizes that many relatives are willing and able

to provide a nurturing and safe placement for children who have

been harmed or are threatened with harm.” 2008 Haw. Sess. Laws

Act 199, § 3 at 738. It is also true that the legislature

amended HRS §§ 587-21 (“Investigation”) and -24 (“Temporary

foster custody without court order”) to authorize DHS to give

placement preference to an appropriate relative in emergency,

temporary foster care cases. 2008 Haw. Sess. Laws Act 199, §§ 4-

5 at 738-39. See HRS § 587-21(b)(3) (2006 & Supp. 2008)(“[DHS]

shall . . . [a]ssume temporary foster custody of the child . . .

provided that placement preference shall be given to an

appropriate relative identified by the department[.]”); HRS §

587-24(c) (2006 & Supp. 2008)(“Upon assuming temporary foster

custody of a child under this chapter, the department shall place

the child in emergency foster care, . . . provided that placement

preference for emergency foster care shall be given to the

appropriate relative identified by the department.”).

The legislative history of these changes demonstrates that

the legislature envisioned grandparents, hanai parents, or lawe

hanai parents as foster placements. See S. Stand. Comm. Rep. No.

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2146, in 2008 Senate Journal, at 932 (“The purpose of this

measure is to establish a grandparent preference for out-of-home

placement of children needing child protective services. . . .

[A] preference may be given to other appropriate family members

who are identified by the Department of Human Services[.]”); S.

Stand. Comm. Rep. No. 2869, in 2008 Senate Journal, at 1232 (“The

purpose of this measure is to establish a preference for

grandparents or family members, when making out of home

placements for children needing child protective services. . . .

This includes seeking out blood relatives such as grandparents,

and hanai and lawe hanai parents.”); H. Stand. Comm. Rep. No.

1190-08, in 2008 House Journal, at 1450 (“The purpose of this

bill is to establish a preference for certain relatives, lawe

hanai, or hanai parents for out-of-home placement of children

involved in child protective proceedings.”); H. Stand. Comm. Rep.

No. 1602-08, in 2008 House Journal, at 1594 (“The purpose of this

bill is to establish a preference for certain relatives,

including hanai relatives, for out-of-home placement of children

involved in child protective proceedings.”) As the bill

progressed through the Senate to House committees, however, one

concern about relative placement emerged:

Your Committee understands that temporary placement of a
child with a relative or other person who is familiar with
the child’s family and circumstances may be better for the
child than placement in foster care with persons unfamiliar

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to the child. However, there are concerns that while foster
parents are licensed and have undergone extensive pre-
screening, relatives and other persons close to the child
may need to undergo a similar level of in-depth screening
prior to receiving placement.

Id. at 1595. It is perhaps for this reason that the relative

placement preference was codified in 2008 to apply only to

emergency, temporary foster care placements. To the extent HRS §

587-1, as amended in 2008, reflected a relative placement

preference, it must be read in the context of the CPA as a whole

to confine such preference to emergency, temporary foster care

placements. See Ko#olau Agric. Co., Ltd. v. Comm’n of Water Res.

Mgmt., 83 Hawai#i 484, 488, 927 P.2d 1367, 1371 (1996)(“[W]e must

read statutory language in the context of the entire statute and

construe it in a manner consistent with its purpose.”) (citation

omitted).

When Chapter 587 was repealed and the CPA was overhauled in

2010, the purpose section (re-codified as HRS § 587A-2) remained

substantially similar13 to HRS § 587-1, as amended in 2008. See
13
The major change to the purpose clause consisted of the addition of the
following language:
The policy and purpose of this chapter includes the
protection of children who have been harmed or are
threatened with harm by:
(1) Providing assistance to families to address the causes
for abuse and neglect;
(2) Respecting and using each family’s strengths,
resources, culture, and customs;
(3) Ensuring that families are meaningfully engaged and
children are consulted in an age-appropriate manner in case
planning;
(4) Enlisting the early and appropriate participation of
family and the family’s support networks;
(continued...)

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2010 Haw. Sess. Laws Act 135, §§ 1, 8 at 283, 314. The

emergency, temporary foster care relative placement preference

was also retained in newly codified, renumbered sub-sections HRS

§§ 587A-9 and -11, as quoted in full, supra. As explained,

supra, however, there is no relative preference in permanent

placement cases under the current CPA.

There being no state statutory relative preference in

permanent placement cases, we disapprove of DHS’s Policy

Directives PA Nos. 2005-5, -7, and -8, which directed the CWSB to

give preference to relatives in determining a foster child’s

permanent placement, to the extent that those policies imply that

DHS may do so without regard to the child’s best interests, which

are always paramount. As the legislature has recognized, there

are possible advantages to the placement of a child with

relatives or with others who are familiar with the child’s family

and circumstances. But to the extent the policy directives

suggest to DHS social workers that a relative placement priority

takes precedence over other significant factors bearing on a

child’s best interests, such as a child’s attachment to a long-

term primary caregiver, as in this case, such directives
13
(...continued)
(5) Respecting and encouraging the input and views of
caregivers; and
(6) Ensuring a permanent home through timely adoption or
other permanent living arrangement,
if safe reunification with the family is not possible.
2010 Haw. Sess. Laws Act 135, § 1 at 282-83.

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impermissibly alter the provisions of the Child Protective Act.

We discuss the policy directives in greater detail next.

DHS Policy Directive PA No. 2005-5, entitled “Supporting,

Strengthening, and Maintaining Family Connections through Kinship

Placement of Children Active with Child Welfare Services Branch

(CWSB),” provides the following:

This policy directive affirms CWSB’s policy to seek and
assess relatives or kin as foster, adoptive, and/or
permanent placement resources for children under the
Department’s voluntary, court-ordered foster or permanent
custody and that relatives or kin placement is preferred to
maintain family connections. . . . In the absence of safety
factors, . . . placement with kin meeting CWSB licensing
requirements shall be a priority in order to maintain family
connections and as a permanent resource for children.

(First, second, and fourth emphases added; third emphasis in

original.) DHS Policy Directive PA No. 2005-7, entitled

“Standards for Kin Placement of Children Under the Department of

Human Services’ (DHS) Placement Responsibility,” makes the same

statement that “placement with kin meeting CWSB licensing

requirements shall be a priority in order to maintain life-long

and enduring family connections and as a permanent resource for

children.” (Emphasis in original.) DHS Policy Directive PA No.

2005-8, entitled “Permanent Plan Approval,” states that it is

DHS’s “policy to seek and assess kin as foster, adoptive, and/or

permanent placement for children under the Department’s custody

and that kin placement shall be a priority to maintain life-long

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family connections.” (First emphasis added; second emphasis in

original.)

Nothing in Chapter 587A reflects a relative preference in

permanent placement cases. In spite of clear statutory language,

DHS’s Policy Directives PA Nos. 2005-5, -7, and -8 state that

relative placement “shall be a priority” in temporary foster,

foster, and permanent placement cases. Chapter 587A and its

legislative history indicate that a relative placement preference

applies only to emergency, temporary foster care cases. See HRS

§§ 587A-9 and -11. Hence, DHS’s policy directives impermissibly

alter the provisions of the Child Protective Act. See In re Doe,

73 Haw. At 19, 827 P.2d at 1146 (opining that “the authority of

the DHS . . . is ‘limited to enacting rules which carry out and

further the purposes of the legislation and to not enlarge,

alter, or restrict the provisions of the act being

administered.”)(citing Puana v. Sunn, 69 Haw. 187, 189, 737 P.2d

867, 870 (1987)). Limited in this way, DHS was authorized to

direct CWSB to give relatives placement preference only in

emergency, temporary foster care cases. As such, we hereby

disapprove of DHS’s Policy Directives PA Nos. 2005-5, -7, and -8,

to the extent a relative preference is mandated in permanent

placement cases, as beyond DHS’s authority to implement under

Chapter 587A.

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D. Revocation of DHS’s Permanent Custodianship

On certiorari, DHS’s fourth question presented is

4. Did the ICA commit grave errors of law by ruling that
the family court was not required to remove DHS as the
child’s permanent custodian after ruling that DHS abused its
placement discretion?

The ICA did not err in holding that DHS misused March 2003

Doe, 101 Hawai’i at 229, 65 P.3d at 176 to support its argument

that the family court should have revoked DHS’s permanent

custodianship once it had determined that DHS abused its

discretion in recommending A.S. be placed with Maternal Aunt. In

re AS, 130 Hawai#i at ____, 312 P.3d at 1223-24. March 2003 Doe

did not hold that DHS’s permanent custodianship should be

revoked. In that case, the family court ordered DHS to maintain

a concerned child’s placement with her aunt in an unlicensed

foster home, against DHS’s foster placement determination. 101

Hawai’i at 228, 65 P.3d at 175.

DHS argued on appeal that the family court “cannot award

foster custody to an authorized agency and simultaneously

restrict that agency’s statutory placement authority as a foster

custodian.” Id. It argued, “(1) that HRS § 587-2 (1993)

expressly vests in a foster custodian the duty and right to

determine where and with whom a foster child shall be placed in

foster care and, therefore, (2) that where the family court

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usurps the authorized agency’s right to place a foster child

under its care, the authorized agency cannot be the foster

custodian as a matter of law.” Id. In other words, DHS argued

that because “(1) DHS could not license Aunt’s home as a foster

family boarding home and (2) the family court concluded . . .

that it was in [the child’s] best interests to remain in the care

of Aunt, the family court should have revoked its award of foster

custody to DHS and vested foster custody in Aunt.” 101 Hawai’i

at 229, 65 P.3d at 176. This court stated, “[W]e . . . agree

with DHS.” Id.

DHS argues that this court’s statement, “We agree,” signaled

this court’s agreement with DHS’s request to have its foster

custodianship revoked; however, the rest of the opinion makes no

such statement. Rather, the focus of the rest of the opinion was

on whether the family court had the discretion to override DHS’s

non-licensure of the aunt to order placement of the child with

the aunt. 101 Hawai#i at 229-31, 65 P.3d at 176-78.

This court noted that the family court abused its discretion

in ordering placement with the aunt, who was not licensed,

thereby forcing DHS to “violate its own rules and regulations.”

101 Hawai#i at 231, 65 P.3d at 178. However, this court further

noted that DHS could have licensed the aunt’s foster home because

denial of a foster care license based on the aunt’s background

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was merely discretionary. 101 Hawai#i at 230, 65 P.3d at 177.

It consequently remanded the case to the family court to order it

to direct DHS to exercise its discretionary licensing power to

license (or not license) the aunt as a foster care provider. 101

Hawai#i at 231, 65 P.3d at 178. If DHS licensed the aunt upon

remand, this court noted that the family court may order DHS to

place the concerned child with her aunt. Id. If DHS did not

license the aunt upon remand, this court noted that the family

court could override that decision and order licensing, or it

could place the concerned child in another licensed foster

boarding home. Id. The revocation argument was not addressed

because of the remand. Therefore, March 2003 Doe does not stand

for, and we hereby reject, the proposition that once the family

court has disagreed with DHS’s placement decision, DHS must be

relieved of its custodianship over the concerned child.

IV. Conclusion

We hold that (1) the party challenging DHS’s permanent

placement recommendation bears the burden of proving by a

preponderance of the evidence that the permanent placement is not

in the child’s best interests; (2) as an agency with child

welfare expertise, DHS as permanent custodian of a child, has the

discretion in the first instance to determine where and with whom

a child shall live; (3) any relative placement preference found

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in Title IV-E of the Social Security Act does not condition the

receipt of federal funds thereunder upon permanent placement of

foster children with relatives; (4) there is no relative

preference in Chapter 587A with regard to permanent placement of

foster children; therefore, to the extent that DHS’s Policy

Directives PA Nos. 2005-5, -7, and -8 mandate such a preference,

those policies impermissibly alter the CPA and its legislative

history; and (5) In re Doe, 101 Haw. 220, 65 P.3d 167 (2003) does

not stand for the proposition that the family court must relieve

DHS of its permanent custodianship if the family court disagrees

with DHS’s permanent placement decision. The ICA’s judgment on

appeal is affirmed, as clarified by this opinion.

Patrick A. Pascual /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Francis T. O’Brien
for respondents /s/ Sabrina S. McKenna
Foster Parents
/s/ Richard W. Pollack
Kimberly S. Towler
for respondent
Volunteer Guardian
Ad Litem Program

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