In re R Children.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-DEC-2019
08:10 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

IN THE INTEREST OF R CHILDREN

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-S NO. 14-00025)

DECEMBER 13, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY NAKAYAMA, J.

This case contemplates the interaction between two

similar statutory provisions that provide for the termination of

parental rights. On December 1, 2016, the Family Court of the

First Circuit (family court) terminated Petitioner/Appellant

Father’s parental rights to his child (KK) pursuant to Hawai#i

Revised Statutes (HRS) § 587A-33 (Supp. 2015), a provision of the

Child Protective Act (CPA) (the CPA Provision). Father appealed.

The Intermediate Court of Appeals (ICA) observed that the CPA
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Provision requires the family court to find that the “proposed

permanent plan is in the best interests of the child” before

terminating a parent’s parental rights. HRS § 587A-33(a)(3).

The ICA held that the family court’s termination of Father’s

parental rights was not permitted by the plain language of the

CPA Provision because the family court found that

Respondent/Appellee Department of Human Services’ (DHS) permanent

plan for KK was not in KK’s best interests. The ICA nevertheless

affirmed the family court’s termination of Father’s parental

rights under a provision of the family court statutes, HRS § 571-

61(b)(1)(E) (Supp. 2016) (the Family Court Provision).

On application for writ of certiorari, Father asks

whether the ICA erred in substituting the Family Court Provision

for the CPA Provision as the basis for terminating his parental

rights.

We hold that the ICA erred in substituting the Family

Court Provision for the CPA Provision as the basis for affirming

the family court’s termination of Father’s parental rights when

the CPA Provision contains a requirement not present in the

Family Court Provision.

Accordingly, we vacate the ICA’s judgment on appeal and

remand to the family court for further proceedings.

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I. BACKGROUND

A. Family Court Proceedings1

Mother has six children. Father is the father of the

youngest child, KK, who was born on

December 20, 2012.2 KK was three years old at the time DHS moved

to terminate Father’s parental rights. At the time of the

termination of parental rights hearing, Mother was no longer in a

relationship with Father. Mother obtained a Temporary

Restraining Order (TRO) against Father on February 10, 2014.

On February 18, 2014, DHS filed a Petition for Family

Supervision over five of the children,3 including KK, after

learning that, in 2013, Father had kicked one of Mother’s older

children in the chest and punched Mother in the head when she

tried to pick up the child. In DHS’s petition, DHS stated that

“[t]he behaviors of [Father] are violent, threatening violence,

and/or out of control.” DHS also remarked that “[Father] is

believed to also have substance abuse issues (alcohol, marijuana

and Ice)[.]” DHS stated that Mother could not adequately

supervise or protect the children from harm, noting the extensive

history of domestic violence in Mother and Father’s relationship

1
The Honorable Steven M. Nakashima presided.
2
Mother’s five other children share a different father.
3
One of the children was already in the care of his maternal grandparents
at this time.

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and between Mother and the father of her older children.

However, DHS opined that Mother “can provide a safe family home

for the children with the assistance of a service plan.”

Because the family court found that “there [was] an

adequate basis to sustain the petition[,]” the family court

ordered Mother and Father to follow a service plan created by

DHS. The February 2014 service plan directed Mother to undergo a

psychological evaluation, domestic violence/anger management

education, comprehensive counseling and support services, and

enhanced healthy start services.4 The February 2014 service plan

directed Father to undergo substance abuse treatment, random

urinalysis, domestic violence/anger management education,

psychological evaluation, and comprehensive counseling and

support services. The February 2014 service plan also directed

both Mother and Father to cooperate with a DHS social worker.

Over the course of the following seventeen months, DHS

created four subsequent service plans. Each service plan

indicated that, if Mother and Father were able to “successfully

complete and utilize the services that [were] outlined in [the]

service plan” and demonstrate that KK was “no longer at risk of

4
Hawaii’s Healthy Start program is a home visiting service intended to
“foster family functioning, promote child health/development, and enhance
positive parenting skills to address the risk of child maltreatment through
linkages with community resources.” Healthy Start Program, State of Hawai #i,
Department of Health (Oct. 20, 2019, 2:17 PM),
https://health.hawaii.gov/mchb/home/healthy-start-program/).

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abuse or neglect in the family home[,]” DHS could recommend that

the case be closed. However, each subsequent service plan warned

Mother and Father again that their “parental and custodial duties

and rights . . . may be terminated . . . unless [they were]

willing and able to provide [KK] with a safe family home within

the reasonable period of time specified in [the] family service

plan.”

On July 23, 2015, DHS filed a motion in the family

court to terminate Mother and Father’s parental rights to KK and

award permanent custody of KK to DHS (Motion to Terminate). DHS

based its motion on the ongoing domestic violence in Mother and

Father’s relationship, Father’s continued substance abuse, and

Mother and Father’s failure to “change to be protective of their

children.” DHS concluded that Mother and Father were unable, now

or in the foreseeable future, to provide a safe home without the

assistance of a court-ordered service plan. In the motion, DHS

proposed a permanent plan which would place KK with adoptive

parents after DHS gained permanent custody of KK.5

B. Termination Hearings

Hearings on the Motion to Terminate took place on

March 8, 2016 and April 4, 2016.

5
KK had been living with “resource caregivers” who were his h ânai
relatives. KK’s resource caregivers indicated to DHS that they wished to
adopt KK.

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Mother testified on April 4, 2016. Mother testified

that she loved KK and that KK had bonded with her and called her

“Mommy” during their supervised visits. Mother testified that

she had a good record of attending her supervised visits with KK.

Mother also testified that if DHS instructed her not to allow

contact between KK and Father, she would comply. Mother stated

that her paycheck from her job at a restaurant would support rent

and utilities in a low-income housing apartment.

Father also testified on April 4, 2016. Father

testified that he had bi-weekly supervised visits with KK and

that he consistently attended those visits. Father stated that

the visits were pleasant, but that KK was “spoiled.” Father

testified that these proceedings began “[b]ecause of [his] anger

issues, drug use, and abuse[,]” but stated that “[i]t’s all good

now” because he was working more and was subjected to random drug

tests at work. Father admitted, however, that there had been a

period during which he consistently missed drug tests. Father

also stated that he had lost parental rights to another child

with a different mother. Father testified that 60 percent of his

paycheck went to child support for four children. Father stated

that he wanted to have more visits with KK, but that he

understood one of the reasons he was unable to have more visits

was his inconsistency with drug testing.

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Annette Shanks (Shanks), a DHS social worker assigned

to KK’s case in 2014, testified on behalf of DHS on March 8,

2016. Shanks testified that DHS believed neither Mother nor

Father were currently willing or able to provide a safe family

home for KK, even with the assistance of a service plan, and that

it was not reasonably foreseeable that they would be able to do

so within a reasonable period of time. DHS’s permanent plan for

KK envisioned his adoption by his resource caregivers. Shanks

testified that this plan was in KK’s best interests because he

was very close with his resource caregivers, who wanted to adopt

him. The family court found Shanks’s testimony credible.

The family court issued its “Order Terminating Parental

Rights of [Father] and Order Regarding Insufficient Basis

Currently to Terminate Parental Rights of [Mother]” on May 23,

2016 and issued its Findings of Fact, Conclusions of Law, and

Order on December 1, 2016.6 Pursuant to HRS § 587A-

6
ACCORDINGLY, IT IS HEEBY [sic] ORDERED that:
1. DHS’ Motion to Terminate Parental Rights Regarding the Child
filed on July 23, 2015 is granted in part as it applies to
[Father] and denied in part as it applies to Mother.
2. The prior award of foster custody and the existing service
plan as to [Father] are revoked as the parental rights of
[Father] are hereby terminated.
3. Further, pursuant to HRS § 587A-33(b)(5), [Father] is
excluded from participating in any subsequent proceedings
and he shall not be notified of future hearings and he shall
not appear at future hearings unless he receives legal
notice that specifically requires his appearance.
4. However, pursuant to HRS § 587A-33(c) unless otherwise
ordered by the Court, or if the Child is ultimately adopted,
(continued...)

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33,7 the CPA Provision, the family court found that “the evidence

presented at trial establishes that there is clear and convincing

evidence that [Father’s] parental rights should be terminated,

however, as to [Mother], there is insufficient evidence to

terminate her parental rights, at this time.” The family court

also found that DHS’s proposed permanent plan of placing KK in

adoption was not in KK’s best interests. The family court

rejected DHS’s permanent plan to place KK in adoption in order to

“afford Mother an opportunity for reunification with [KK] if

Mother is able to comply with the requirements set forth [by

DHS].”

C. ICA Proceedings

Father filed a notice of appeal from the Order

Terminating Parental Rights on May 31, 2016. In his opening

brief, Father argued, inter alia, that the circuit court’s

termination of Father’s parental rights after finding that DHS’s

permanent plan was not in KK’s best interests “is contrary to the

6
(...continued)
[Father] shall retain the continuing responsibility to
support the Child, including repaying the cost of any and
all care, treatment, or any other service provided for the
Child’s benefit.
5. The prior award of foster custody as it applies to Mother
shall continue and DHS is not awarded permanent custody of
the Child.
6. The DHS shall prepare a plan to achieve permanency for the
Child within 3 months of May 5, 2016. HRS § 587A-33(h)(1).
7
See infra Section III. A.

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statutory provisions of Section 587A-33(b) [the CPA Provision.]”

The ICA agreed. The ICA held that because the family

court did not find the permanent plan of adoption to be in KK’s

best interests, the requirements of the CPA Provision were not

met and the CPA Provision therefore provided no basis for

terminating Father’s parental rights. In the Interest of R

Children, No. CAAP-XX-XXXXXXX, 2018 WL 4346884 (App. Sept. 12,

2018) (mem.). Nevertheless, the ICA held that the family court

did not err in terminating Father’s parental rights, because HRS

§ 571-61(b)(1)(E),8 the Family Court Provision, provides for the

termination of parental rights without regard to a permanent

plan, and “[t]he legislative history is clear that HRS chapter

587 was not intended to displace the provisions of HRS chapter

571, but rather to incorporate its provisions into a unified

proceeding.” (Citing S. Stand. Comm. Rep. No. 537-86, in 1986

Senate Journal, at 1023.) The ICA therefore concluded that

8
The Family Court Provision, HRS § 571-61(b)(1)(E), provides,

The family courts may terminate the parental rights in
respect to any child as to any legal parent:

. . . .

(E) Whose child has been removed from the
parent’s physical custody pursuant to
legally authorized judicial action under
section 571-11(9), and who is found to be
unable to provide now and in the
foreseeable future the care necessary for
the well-being of the child[.]

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“[h]aving met the standard necessary for termination under [the

CPA Provision] . . . termination of Father’s parental right is

permissible under [the Family Court Provision].” The ICA

affirmed the family court’s judgment terminating Father’s

parental rights to KK.

Father filed an application for writ of certiorari.

II. STANDARDS OF REVIEW

A. Family Court Decisions

Generally, the family court possesses wide discretion
in making its decisions and those decision[s] will not
be set aside unless there is a manifest abuse of
discretion. Thus, we will not disturb the family
court’s decisions on appeal unless the family court
disregarded rules or principles of law or practice to
the substantial detriment of a party litigant and its
decision clearly exceeded the bounds of reason.

Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)

(quoting In re Doe, 95 Hawai#i 183, 189-90, 20 P.3d 616, 622-23

(2001)).

The family court’s conclusions of law, on appeal, are

reviewed de novo under the right/wrong standard. In re Jane Doe,

101 Hawai#i 220, 227, 65 P.3d 167, 174 (2003). Conclusions of

law, “consequently, are not binding upon an appellate court and

are freely reviewable for their correctness.” Id. (internal

quotation marks, citation, and brackets omitted).

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B. Statutory Interpretation

“Statutory interpretation is a question of law

reviewable de novo.” State v. Wheeler, 121 Hawai#i 383, 390, 219

P.3d 1170, 1177 (2009) (internal quotation marks and citations

omitted). Our construction of statutes is guided by the

following rules:
First, the fundamental starting point for statutory-
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.

First Ins. Co. of Haw. v. A&B Props., 126 Hawai#i 406, 414, 271

P.3d 1165, 1173 (2012) (internal citations omitted).

III. DISCUSSION

In his application for writ of certiorari, Father

argues that the ICA gravely erred in substituting the Family

Court Provision as the basis for affirming the family court’s

decision.

A. The CPA Provision provides for the termination of parental
rights only when the family court finds that the proposed
permanent plan is in the best interests of the child.

As a threshold matter, we agree with the ICA that the

CPA Provision only provides for the termination of a parent’s

parental rights if the family court finds that the permanent plan

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is in the child’s best interests. Because the family court here

found that DHS’s permanent plan was not in KK’s best interests,

the family court erred in terminating Father’s parental rights to

KK under the CPA Provision. The CPA Provision, HRS § 587A-33,

provides,

Termination of parental rights hearing. (a) At a
termination of parental rights hearing, the court
shall determine whether there exists clear and
convincing evidence that:
(1) A child’s parent whose rights are subject
to termination is not presently willing
and able to provide the parent’s child
with a safe family home, even with the
assistance of a service plan;
(2) It is not reasonably foreseeable that the
child’s parent whose rights are subject to
termination will become willing and able
to provide the child with a safe family
home, even with the assistance of a
service plan, within a reasonable period
of time, which shall not exceed two years
from the child’s date of entry into foster
care;
(3) The proposed permanent plan is in the best
interests of the child. In reaching this
determination, the court shall:
(A) Presume that it is in the best
interests of the child to be
promptly and permanently placed with
responsible and competent substitute
parents and family in a safe and
secure home; and
(B) Give greater weight to the
presumption that the permanent plan
is in the child’s best interest, the
younger the child is upon the
child’s date of entry into foster
care; and
(4) The child consents to the permanent plan
if the child is at least fourteen years
old, unless the court consults with the
child in camera and finds that it is in
the best interest of the child to proceed
without the child’s consent.
(b) If the court determines that the criteria
set forth in subsection (a) are established by clear
and convincing evidence and the goal of the permanent
plan is for the child to be adopted or remain in
permanent custody, the court shall order:

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(1) That the child’s parent’s parental rights
be terminated;
(2) Termination of the existing service plan
and revocation of the prior award of
foster custody;
(3) That permanent custody of the child be
awarded to an appropriate authorized
agency;
(4) An appropriate permanent plan; and
(5) The entry of any other orders the court
deems to be in the best interests of the
child, including restricting or excluding
unnecessary parties from participating in
adoption or other subsequent proceedings.

. . . .

(h) If the court determines that the criteria
set forth in subsection (a) are not established by
clear and convincing evidence, the court shall order:
(1) The preparation of a plan to achieve
permanency for the child;
(2) The entry of any orders that the court
deems to be in the best interests of the
child;
(3) A periodic review hearing to be held
within six months after the date of the
last permanency hearing; and
(4) A permanency hearing to be held within
twelve months of the date of the last
permanency hearing.

HRS § 587A-33 (Supp. 2015) (emphasis added). In other words, the

CPA Provision provides that the family court shall terminate a

parent’s parental rights if it finds that: (1) the parent is not

able to provide a safe family home for the child now or within a

reasonable period of time (HRS §§ 587A-33(a)(1)-(2)); (2) the

proposed permanent plan is in the best interests of the child

(HRS § 587A-33(a)(3)); and (3) the child consents to the

permanent plan if the child is at least fourteen years old (HRS §

587A-33(a)(4)). Pursuant to section (h) of the CPA Provision, if

the family court does not find that all of these requirements are

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met, the family court shall take further steps to establish

permanency for the child. HRS § 587A-33(h). However, nothing in

the CPA Provision indicates that the family court can terminate a

parent’s parental rights if fewer than all of the above

requirements are met.

Here, the CPA Provision requirements were not met. The

family court concluded that “DHS has shown by clear and

convincing evidence that [Father] is not presently willing and

able to provide the Child with a safe family home, even with the

assistance of a service plan” and that “it is not reasonably

foreseeable that [Father] will become willing and able to provide

the Child with a safe family home, even with the assistance of a

service plan, within a reasonable period of time.” However, the

family court did not make equivalent parental unfitness findings

as to Mother, and did not terminate Mother’s parental rights.

DHS’s proposed permanent plan was for DHS to obtain permanent

custody of KK, and for KK’s resource caregivers to thereafter

adopt KK. Therefore, DHS’s proposed permanent plan did not

anticipate Mother’s ability to regain custody of KK.

Accordingly, the family court found that “the Permanent Plan is

not in the Child’s best interests[.]” Citing various subsections

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of the CPA Provision,9 the family court terminated Father’s

parental rights.

The family court’s order terminating Father’s parental

rights without finding that the proposed permanent plan was in

KK’s best interests contravenes the plain language of the CPA

Provision. The family court found by clear and convincing

evidence that the requirements set forth in HRS §§ 587A-33(a)(1)

and (a)(2) were met, but explicitly determined that the

requirement of HRS § 587A-33(a)(3) was not met.10 Because not all

of the requirements set forth in the CPA Provision were met, the

statute did not provide the family court authority to terminate

Father’s parental rights. See HRS § 587A-33(h).

“[W]here the statutory language is plain and

unambiguous, our sole duty is to give effect to its plain and

obvious meaning.” Wheeler, 121 Hawai#i at 390, 219 P.3d at 1177.

The requirement that the family court find the permanent plan to

be in the best interests of the child before terminating a

parent’s parental rights is plain on the face of the CPA

Provision. Accordingly, the family court erred in terminating

9
See supra note 6.
10
The family court made no specific determination as to HRS § 587A-
33(a)(4) because KK was less than fourteen years old.

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Father’s parental rights under the CPA Provision.11

B. The ICA erred in substituting the Family Court Provision as
the basis for terminating Father’s parental rights because
the CPA Provision contains an additional requirement.

In 1965, the Legislature enacted the statute that is

now the Family Court Provision as part of “A Bill for an Act to

Establish Family Courts” with the purpose of “gather[ing]

together all judicial activities which relate to children and the

family.” H.B. 879, 3rd Leg., Gen. Sess. (Haw. 1965); S. Stand.

Comm. Rep. No. 272, in 1965 Senate Journal, at 917. In 1983, Act

171 enacted the first version of the CPA, which included the

Family Court Provision, and was codified as HRS chapter 587.

1983 Haw. Sess. Laws Act 171, at 320-45. In 2010, Act 135

repealed HRS chapter 587 and divided its contents into the new

CPA, codified as HRS chapter 587A, and the “Family Courts”

chapter, codified as HRS chapter 571. 2010 Haw. Sess. Laws Act

135, § 1 at 282-311.

There is considerable overlap between the new CPA and

the Family Courts chapter, both with respect to the criteria for

instigating the termination of parental rights and the procedure

for terminating a parent’s parental rights. The new CPA was

11
The CPA Provision, HRS § 587A-33, provided the sole basis for the family
court’s judgment terminating Father’s parental rights. “[T]he rights to
conceive and to raise one’s children are essential, . . . basic civil rights
of man protected by the United States Constitution.” In re Doe, 99 Hawai #i
522, 532, 57 P.3d 447, 457 (2002) (internal quotation marks and citations
omitted). As such, nothing less than strict compliance with the statute
invoked is sufficient to terminate parental rights.

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enacted to “ensure[] that the Child Protective Act is in

conformity with Federal Title IV-E provisions.”12 S.B. 2716,

Conf. Com. Rep. 112-10, at 764. The Legislature’s desire to

conform with federal Social Security Act provisions might explain

why the two similar chapters exist concurrently.

Despite the overlap in the CPA and the Family Courts

chapter, the Family Court Provision and the CPA Provision are not

interchangeable. The Family Court Provision cannot serve as a

substitute for the CPA Provision when the CPA Provision contains

an additional requirement. The ICA therefore erred in affirming

the family court’s order terminating Father’s parental rights

under the Family Court Provision.

The ICA concluded that “[a]n award of permanent custody

under HRS section 587A-33 [the CPA Provision] involves

essentially the same criteria and material elements as

termination of parental rights under HRS section 571-61(b)(1)(E)

[the Family Court Provision].” The ICA also referred to case law

and legislative history demonstrating that the two statutes are

meant to be used together, not one to the exclusion of the other.

The ICA therefore held that “termination of Father’s parental

right[s] is permissible under HRS section 571-61(b)(1)(E) [the

12
Title IV-E of the Social Security Act (42 U.S.C. §§ 671-679(b)) provides
federal reimbursement to states for a portion of the maintenance and
administrative costs of foster care for children who meet federal eligibility
requirements. 42 § U.S.C. 672.

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Family Court Provision].”

The ICA is correct that the CPA and the Family Courts

chapter can be used together, but erred in substituting the

Family Court Provision for the CPA Provision when the two

statutes are not interchangeable. The procedure set forth by the

CPA Provision requires the family court to find that the

permanent plan is in the best interests of the child before

terminating a parent’s parental rights. HRS § 587A-33(a)(3). In

ignoring the procedural requirement of the permanent plan finding

set forth by the CPA Provision, the ICA disregarded an important

requirement of the parental rights termination process.

The Family Court Provision permits termination of

parental rights without regard to a permanent plan. The Family

Court Provision, HRS § 571-61(b)(1)(E) (Supp. 2016), provides
(1) The family courts may terminate the parental
rights in respect to any child as to any legal
parent:

. . . .

(E) Whose child has been removed from the
parent’s physical custody pursuant to
legally authorized judicial action under
section 571-11(9), and who is found to be
unable to provide now and in the
foreseeable future the care necessary for
the well-being of the child[.]

By contrast, the CPA Provision requires more before the family

court can terminate a parent’s parental rights. As previously

discussed, the CPA Provision requires the family court to find

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that DHS’s proposed permanent plan is in the best interests of

the child. HRS § 587A-33(a)(3). The ICA concluded that the CPA

Provision and the Family Court Provision can be read together to

allow the family court’s termination of Father’s parental rights.

However, the ICA’s analysis substituted the Family Court

Provision for the CPA Provision as the basis for terminating

Father’s parental rights. In doing so, the ICA’s analysis

disregarded HRS § 587A-33(a)(3), the portion of the CPA Provision

that requires the family court to find that the proposed

permanent plan is in the best interests of the child.

With respect to statutory interpretation, this court

has previously stated,
[i]n the construction of a statute the general law is
that a statute should be so interpreted to give it
effect; and we must start with the presumption that
our legislature intended to enact an effective law,
and it is not to be presumed that legislation is a
vain effort, or a nullity.

State v. Harada, 98 Hawai#i 18, 48, 41 P.3d 174, 204 (2002).

Moreover,
It is the generally accepted rule of statutory
construction that unless a legislative intention to
the contrary clearly appears, special or particular
provisions control over general provisions, terms or
expressions . . . . It is also elementary that
specific provisions must be given effect
notwithstanding the general provisions are broad
enough to include the subject to which the specific
provisions relate.

State by Kashiwa v. Coney, 45 Haw. 650, 662, 372 P.2d 348, 354

(1962), overruled on other grounds by City and Cty. of Honolulu

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v. Bonded Inv. Co., Ltd., 54 Haw. 385, 507 P.2d 1084 (1973). Put

differently, this court presumes that the legislature does not

enact statutes with language that has no meaning and has

concluded that specific statutes control over general statutes.

The ICA erred in disregarding the permanent plan

requirement of the CPA Provision because the plan furthers the

legislature’s intent to serve the best interests of the child.

The CPA’s stated purpose is to “make paramount the safety and

health of children who have been harmed or are in life

circumstances that threaten harm.” HRS § 587A-2 (Supp. 2015).

The statute instructs that “[t]his chapter shall be liberally

construed to serve the best interests of the children affected

and the purpose and policies set forth herein.” HRS § 587A-2.

The CPA also explicitly calls for the implementation of

permanent plans. The CPA’s statement of purpose references

permanent plans four times. HRS § 587A-2. Also, the CPA “makes

provisions for the service, treatment, and permanent plans for []

children and their families.” HRS § 587A-2 (emphasis added).

The legislative history of Act 316, which enacted a previous

version of HRS chapter 587, states that the CPA was “to provide

for timely permanent planning by incorporating in the Child

Protective Act certain provisions of the termination of parental

rights statute[.]” H. Stand. Comm. Rep. No. 236-86, in 1986

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House Journal, at 1088 (emphasis added). The CPA’s purpose and

legislative history convey the legislature’s intent that the CPA

provide for permanent plans that are in the best interests of

children. As such, the ICA erred in substituting the Family

Court Provision to circumvent the permanent plan requirement of

the CPA Provision.

Moreover, the permanent plan requirement in the CPA

Provision adds an additional, specific criterion that we cannot

disregard. See Kashiwa, 45 Haw. at 662, 372 P.2d at 354. The

permanent plan requirement in the CPA Provision is specific

because, as discussed previously, it sets forth an additional

criterion not present in the Family Court Provision. This

interpretation does not contravene clear legislative intent to

the contrary. Using the statutes together but allowing the

specific provision to control where the family court does not

find the permanent plan to be in the child’s best interests

comports with the legislature’s intent. Therefore, the specific

permanent plan requirement of the CPA Provision controls. As

such, the ICA erred in disregarding the permanent plan

requirement and concluding that the CPA Provision’s termination

criteria are “essentially the same” as the Family Court

Provision’s criteria, when the CPA Provision clearly contains an

additional criterion.

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Finally, neither of the two cases that the ICA cited in

determining that the Family Court Provision was an adequate

substitute for the CPA Provision support that proposition.

First, the ICA cited its holding in In re Male Child Born on

May 27, 1983, 8 Haw. App. 66, 72, 793 P.2d 669, 672 (1990) that

the termination criteria under the CPA Provision and the Family

Court Provision are “essentially the same.” However, in Male

Child, the ICA was construing the phrase “foreseeable future,”

contained in the Family Court Provision, and did not consider the

CPA’s permanent plan requirement. Id. The ICA noted that, under

a different CPA provision, HRS § 587-73 (Supp. 1989), a

“reasonable period of time . . . shall not exceed three years[.]”

Id. at 69-70, 793 P.2d at 671. The ICA therefore held that,

reading the statutes together, “foreseeable future” means three

years from the filing date of the petition for termination of

parental rights, consistent with the CPA Provision. Id. at 72,

793 P.2d at 672. Male Child does not reference the CPA

Provision’s requirement that the permanent plan be in the best

interests of the child, and in disregarding it, only imports the

temporal provisions of the Family Court Provision and the CPA

Provision. Therefore, Male Child does not support the ICA’s

invocation of the Family Court Provision to affirm the family

court’s improper termination of Father’s parental rights under

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the CPA Provision.

The ICA also cited our decision in In re Doe Born on

May 22, 1976, 84 Hawai#i 41, 928 P.2d 883 (1996) to conclude that

the CPA Provision and the Family Court Provision are not mutually

exclusive. In Doe, an action was initiated involving a minor

under certain family court provisions. Id. at 43, 928 P.2d at

885. This court held, inter alia, that the family court was

permitted to address the problems that arose under the CPA

regardless of whether the action was initiated under family court

provisions “or by way of a formal chapter 587 [CPA] petition.”

Id. at 52, 928 P.2d at 894. We referred to how the statutes

interact generally and made no reference to the specific

provisions that govern the termination of parental rights or the

additional permanent plan criterion in the CPA Provision.

Therefore, Doe is also not analogous to the specific statutory

conflict at issue here.

Male Child and Doe stand for the general proposition

that the CPA Provision and the Family Court Provision can be used

together to ensure that the best interests of the child are

provided for. However, when the family court finds that the

proposed permanent plan is not in the child’s best interests, the

CPA Provision and the Family Court Provision cannot be “read

together” to circumvent the CPA Provision’s permanent plan

criterion.

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IV. CONCLUSION

We agree with the ICA that the family court erred in

terminating Father’s parental rights under HRS § 587A-33, the CPA

Provision, without finding that DHS’s proposed permanent plan was

in KK’s best interests.

However, the ICA erred by invoking the Family Court

Provision to affirm the family court’s termination of Father’s

rights. Because the Family Court Provision does not reference a

permanent plan, the ICA’s substitution of the Family Court

Provision for the CPA Provision disregards the permanent plan

requirement set forth in the CPA Provision. The CPA envisioned

the implementation of permanent plans to bring safety and

stability to the children within its jurisdiction. By ignoring

the permanent plan requirement of the CPA Provision, the ICA

contravenes the explicit purpose of the CPA.

We therefore vacate the ICA’s judgment on appeal and

remand to the family court for further proceedings consistent

with this opinion.

Randal I. Shintani for /s/ Mark E. Recktenwald
petitioner/father-appellant
/s/ Paula A. Nakayama
Julio C. Herrera, Ian T.
Tsuda, and Patrick A. Pascual, /s/ Sabrina S. McKenna
Deputy Attorneys General, for
respondent-appellee Department /s/ Richard W. Pollack
of Human Services
/s/ Michael D. Wilson

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