NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-NOV-2020
07:55 AM
Dkt. 108 MO
NO. CAAP-XX-XXXXXXX
(Consolidated with No. CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
IN THE INTEREST OF KKA, BORN ON 00/00/0000
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S No. 19-00026)
and
CAAP-XX-XXXXXXX
IN THE MATTER OF THE ADOPTION OF A FEMALE CHILD,
BORN ON 00/00/0000 BY KA AND LA, HUSBAND AND WIFE
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-A No. 05-1-0502)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Petitioner-Appellant State of Hawai#i Department of
Human Services (DHS) appeals from orders entered by the Family
Court of the First Circuit1 in two cases concerning the same
adopted minor child. In CAAP-XX-XXXXXXX, DHS appeals from the
"Orders [sic] Concerning Child Protective Act" entered in FC-S
No. 19-00026 (the Child Protective Act Case) on August 13, 2019.
In CAAP-XX-XXXXXXX, DHS appeals from the "Orders [sic] Setting
Aside and Rescinding the Adoption Decree Filed on January 13,
2006[,]" entered in FC-A No. 05-1-0502 (the Adoption Case) on
1
The Honorable Bode A. Uale entered the orders on appeal.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
August 13, 2019. We consolidated the appeals on September 4,
2019.
For the reasons explained below we vacate both orders,
without prejudice to further proceedings in the Child Protective
Act Case.
BACKGROUND
KKA (Child) was born in 2003. The parental rights of
Child's natural mother and father were terminated by order of the
family court on February 8, 2005.
KA (Adoptive Father) and LA (Adoptive Mother) filed the
Adoption Case, seeking to adopt Child. The family court entered
"Findings and Decision of the Court Granting Petition for
Adoption" and an "Adoption Decree". KA and LA became Child's
adoptive parents effective December 20, 2005. Child was two
years old at the time.
Adoptive Father died in 2018, when Child was 15 years
old. At some point after Adoptive Father's death, Adoptive
Mother and Child moved to Virginia with Adoptive Mother's fiancé.
Adoptive Mother's fiancé works for the federal department of
defense. The following findings of fact by the family court are
unchallenged:2
3. [Child] stated to adoptive mother that she did
not want to be with her and that she wanted to return to her
biological mother
. . . .
7. While in Virginia, [Child] got into drugs and
she was placed in an Alternative Learning Center ("ALC").
Adoptive mother was concerned about [Child] being exposed to
bad influences while at the ALC.
8. In addition, [Child] used marijuana.
9. [Child]'s marijuana use could jeopardize
adoptive mother's fiancé's job [with the federal department
of defense].
10. Adoptive mother sent [Child] to Hawai#i under
Power of Attorney ("POA")to live with [Child's] adult
sister[.]
2
The family court entered identical findings of fact and
conclusions of law in the Adoption Case and in the Child Protective Act Case.
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11. In September 2018, [Child] ran away from her
sister's home to stay with her biological mother.
12. During this time, [Child]'s biological mother
became homeless, and [Child] lived with her on the beach.
13. This runaway behavior was the same type of
behavior [Child] engaged in in Virginia — running away,
interference and defiance.
14. Adoptive mother resided in Virginia while
[Child] resided in Hawai#i, and there was no legal caretaker
for [Child] in Hawai#i, despite the POA.
15. Adoptive mother tried to get [Child] to return
to Virgina [sic], but [Child] continued to run away from her
adult sister.
16. [Child] was then arrested and placed into the
Kapolei Detention Center pending her return to her adoptive
mother in Virginia.
17. [Child] expressed to adoptive mother that she
did not want to live with adoptive mother.
18. [Child] expressed to adoptive mother that she
did not want to live in Virginia.
19. [Child] expressed to adoptive mother that she
did not want to live with adoptive mother's eldest daughter,
who currently resides in Las Vegas, Nevada, which was the
original plan.
. . . .
22. In January 22, 2019, DHS assumed placement
responsibility for [Child] based on [alleged] physical
neglect by adoptive mother. On that date, [Child] was
placed in an emergency shelter to last through to [sic]
May 10, 2019.
. . . .
24. While placed at the emergency shelter, she ran
away for a period of four weeks. She eventually returned.
25. On June 28, 2019, she again ran away from her
placement at the shelter.
26. [Child] wishes to remain in Hawai#i with her
birth mother or adult sister.
. . . .
28. On March 23, 2019, Foster Custody of the [Child]
was awarded to the DHS.
. . . .
30. On July 15, 2019, a review hearing was held by
the Honorable Bode A. Uale. . . .
31. At that hearing, and after colloquy, the Court
found that [Child]'s adoptive mother . . . "knowingly,
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willingly, and voluntarily waived her right to counsel and
proceeded pro se at today's hearing." . . .
32. The Court further found, after colloquy, that
"[Adoptive Mother] knowingly, willingly, and voluntarily
consented and agreed [sic] to rescind and set aside the
adoption of [Child]" and "the adoptive mother . . . has
knowingly, voluntarily, and willingly consented to rescind
the adoption of [Child] and the adoption is set aside."
On July 15, 2019, in the Child Protective Act Case, the
family court entered an order setting aside the Adoption Decree
and discharging Adoptive Mother as a party. DHS moved for
reconsideration. The motion was heard on August 13, 2019. The
family court denied reconsideration and entered the orders in the
Child Protective Act Case and the Adoption Case from which DHS
appeals.
STANDARD OF REVIEW
[T]he 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)
(citation omitted).
The family court's findings of fact are reviewed under
the "clearly erroneous" standard. Fisher, 111 Hawai#i at 46, 137
P.3d at 360. A finding of fact is clearly erroneous when the
record lacks substantial evidence to support the finding, or
despite substantial evidence in support of the finding, we are
nonetheless left with a definite and firm conviction that a
mistake has been made. Id. "Substantial evidence" is credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion.
Id. "It is well-settled that an appellate court will not pass
upon issues dependent upon the credibility of witnesses and the
weight of evidence; this is the province of the trier of fact."
Id. (citation omitted).
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The family court's conclusions of law are ordinarily
reviewed de novo, under the right/wrong standard, "and are freely
reviewable for their correctness." Fisher, 111 Hawai#i at 46,
137 P.3d at 360. However, when a conclusion of law presents
mixed questions of fact and law, we review it under the "clearly
erroneous" standard because the court's conclusions are dependent
on the facts and circumstances of each individual case. Estate
of Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d
504, 523 (2007). A conclusion of law that is supported by the
trial court's findings of fact and reflects an application of the
correct rule of law will not be overturned. Id.
DISCUSSION
DHS contends the family court erred by: (1) setting
aside Child's adoption by Adoptive Mother for reasons not
authorized under Hawaii Revised Statutes (HRS) § 578-12; and
(2) relying upon "the best interests of the child" to set aside
the Adoption Decree.3
1. The family court erred by setting aside
the Adoption Decree in the Adoption Case.
HRS § 578-12 (2018) provides, in relevant part:
At any time within one year from the date of entry of any
decree of adoption, the court may, for good cause, set aside
or modify the decree and, in connection therewith, may make
appropriate orders, concerning the custody of the minor
child and the disposition and handling of the record of
adoption by the department of health. The setting aside or
modification of any decree of adoption shall not affect any
property rights which have become vested between the date of
the entry of the decree or the effective date of the decree
and the effective date of any order setting aside or
modifying the decree of adoption.
No decree of adoption shall be subject to attack in
any collateral proceeding, and, after the expiration of one
3
DHS's statement of points also challenges the family court's
finding of fact no. 34(a) and conclusions of law nos. 1-5, but the opening
brief presents no discernable arguments on those issues and we deem the points
waived. Hawai#i Rules of Appellate Procedure, Rule 28(b)(7); see In re
Guardianship of Carlsmith, 113 Hawai#i 236, 246, 151 P.3d 717, 727 (2007)
(noting that an appellate court "may disregard a particular contention if the
appellant makes no discernible argument in support of that position") (cleaned
up) (citations omitted).
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year from the date of its entry, no decree of adoption shall
be subject to direct attack upon any ground other than fraud
rendering the decree void as of the time of its entry.
(Emphasis added.)
DHS argues that the family court erred in 2019 when it
set aside the 2006 Adoption Decree. We agree for three reasons.
First, the Child Protective Act Case was a proceeding collateral
to the Adoption Case. HRS § 578-12 prohibits a collateral attack
on a decree of adoption; the family court lacked authority to
order the Adoption Decree set aside as part of the Child
Protective Act Case.
Second, we have held that HRS § 578-12 is a one-year
statute of limitations prohibiting a direct attack on an adoption
decree except for fraud which renders the decree void ab initio.
In re Adoption of Male Minor Child, 1 Haw. App. 364, 370, 619
P.2d 1092, 1097 (1980). In the Adoption Case, the family court
set aside the Adoption Decree 13 years after the decree was
entered, on grounds other than fraud; the family court erred when
it set aside the Adoption Decree in the Adoption Case.
Third, HRS Chapter 578 was enacted based largely upon
recommendations contained in U.S. Children's Bureau, Pub.
No. 331-1949, Essentials of Adoption Law and Procedure (1949),
https://babel.hathitrust.org/cgi/pt?id=mdp.39015018389950&view=1u
p&seq=1. In re Adoption of Male Minor Child, 1 Haw. App. at 369,
619 P.2d at 1096. The federal publication states:
Adoption establishes a permanent relationship. With
the provision of adequate social study and supervision
before the decree is granted, there should be no need for
annulment.
The adoptive parent has recourse to the remedies that
are available to a natural parent: [they] may formally
relinquish the child; consent to the child's adoption; . . .
or disown [the child] when [their] will is made. The
adopting parents' rights may be terminated when necessary by
the court in accordance with the provisions existing for the
protection of children.
Essentials of Adoption Law and Procedure at 22-23 (emphasis
added). As discussed in the next section, HRS § 571-61(a)
contemplates relinquishment of parental rights for an adopted
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child. It was error for the family court to set aside the
Adoption Decree.
2. The family court erred when it
terminated Adoptive Mother's parental
rights in the Child Protective Act Case.
DHS filed the Child Protective Act Case in the family
court under HRS §§ 571-11 (2018) and 587A-5 (2018). Those
statutes provide, in relevant part:
[§ 571-11] Jurisdiction; children. Except as
otherwise provided in this chapter, the [family] court shall
have exclusive original jurisdiction in proceedings:
. . . .
(9) For the protection of any child under chapter
587A[.]
[§ 587A-5] Jurisdiction. Pursuant to section
571-11(9), the [family] court shall have exclusive original
jurisdiction:
(1) In a child protective proceeding concerning any
child who is or was found within the State at
the time specified facts and circumstances
occurred, are discovered, or are reported to
[DHS] . . . [that] constitute the basis for the
court's finding that the child's physical or
psychological health or welfare is subject to
imminent harm, has been harmed, or is subject to
threatened harm by the acts or omissions of the
child's family[.]
The family court found, and DHS does not contest, that
Child told Adoptive Mother she did not want to be with Adoptive
Mother in Virginia, and wanted to return to her biological
mother. Adoptive Mother sent Child with a power of attorney to
live with Child's adoptive sister in Hawai#i. Child ran away
from her adoptive sister's home to stay with her biological
mother. Child's biological mother was homeless; they lived on
the beach. Adoptive Mother tried to get Child to return to
Virginia, but Child continued to run away from her adoptive
sister. Child was arrested and placed into the Kapolei Detention
Center. Child ran away from the detention center, and a warrant
for her arrest was issued.
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During a review hearing conducted on July 15, 2019, the
family court had the following colloquy with Adoptive Mother, who
attended the hearing in person and agreed to relinquish her
parental rights:
THE COURT: Okay. Well, you still live in Virginia
then, right?
[ADOPTIVE MOTHER]: I do live in Virginia.
THE COURT: Okay. The problem is is that she's here
and you're not here. So when there's no legal caretaker,
then the State has to step in and try to provide her with
shelter. I know you sent her with a power of attorney, is
that right?
[ADOPTIVE MOTHER]: Yes.
THE COURT: Okay. So that -- that doesn't really work
for everything because of her age and all of the things that
she needs. It's really up to you. If you -- if you -- if
you want to fight for her and -- are you planning on taking
her back with you to Virginia? What is your plan?
[ADOPTIVE MOTHER]: Well, originally, before all of
this started, I was trying to get her to come back to
Virginia. But she kept running away so it was just
impossible for me to get her back. And then when she got
into more trouble and was placed in the detention home, I
couldn't take her back. And so while she was on the run,
you know, she would text me sometimes and tell me that she's
okay. So I had told her, you know, turn yourself in,
[Child], because it's not right for you to be out there,
it's not safe.
THE COURT: Yeah.
[ADOPTIVE MOTHER]: Turn yourself in and tell them,
you guys, what you want because I can't do it for you no
more. If I could do it for you, I would do it for you but
-- but I can't -- I can't make you do what is right. I
can't make the decisions for you. I can, but it doesn't
mean that you're going to do it, which is where I'm at right
now. And so she did. She listened to me. That night, she
turned herself in. She knows she was going to detention
home, which she went.
And, you know -- and then I got the report and I --
well, I got the court paperwork after I got the phone call
from here. When you guys did the first proceeding and when
I read the paperwork, it said that I'm being charged for
neglect. I guess I'm being charged for neglect basing on
the fact that I couldn't get my child back to Virginia in my
custody, is because she kept running away. But, you know,
it was then that she said she doesn't want to live with me.
She doesn't want to live with me. She doesn't want to live
in Virginia. She doesn't want to live with my daughter who
was part -- the reason I -- my daughter came into the
picture was because she was part of the adoption plan in the
beginning. She -- my daughter currently now resides in
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Nevada, in Las Vegas, and she said she doesn't want to live
with my daughter, she doesn't want to live in Las Vegas.
She wants to live with her mother, her birth mother,
or her oldest sister[.] And so, you know, if that's what
she wants, then that's what I'm going to advocate for. I
know it's not the best place for her, but forcing her to
live with me even though I want to bring her back with me,
it's not going to help solve whatever is going on in her
mind.
For me, I think what I would want for her, I want her
to be with me because I know I'm the best person to provide
care for her. But being the best caretaker doesn't mean
that I'm the best person for her. And she had already
stated that she doesn't want to be with me. So at this
point, I do believe that forcing her to come back with me to
Virginia is not going to be in her best interest. And she
had said if she can't live with her mom or live with her
sister, she would want to age out of the system 'cause she
was comfortable being where she was. Apparently, that's not
so anymore because she's gone again, you know, and --
THE COURT: Well, let me just say that I -- I don't --
I don't believe you've been neglectful. I think you've
tried your best to help her. You know, when they turn 16,
17, kind of hard to force anybody to do anything, and that's
how I see her because we've had her in our custody and tried
to help her. She ran. It's kind of hard to tell any
16-year-old what to do.
[ADOPTIVE MOTHER]: Yeah.
THE COURT: Yeah? And so is there a warrant out for
her arrest on the J side or not?
. . . .
[DEPUTY A.G.]: There is.
. . . .
THE COURT: Okay. It's really up to you, ma'am. What
I can do is I -- like I said, I don't believe you've been
neglectful. You've been a unfortunate mother to a
16-year-old who's basically going to do what she going to
do. If you want, I can -- if you want me to -- because I
don't believe that I'm -- forcing her to go back to you is
going to help, 'cause even if we -- we force her to go back,
she's not going to -- she going board the plane, what you
going to do? You not going do -- you not going be able to
force her to get on the plane. And even if she gets on the
plane, once she's in Virginia, if she runs again, then she
runs, you know.
If you'd like me to, I can rescind the adoption, and
then we can work with her within the system. You can go
back to Virginia. And I know this is not the optimum thing
because I know you love her and care for her, but I don't
think that we're -- I mean even -- you're not -- how long
are you here for?
[ADOPTIVE MOTHER]: I -- I have to go back to work on
the 28th.
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THE COURT: See, so even that time, we -- we not sure
if we can get her back.
. . . .
. . . Because she's on the run. The police are
probably going to -- we -- we cannot do anything until they
come back for a hearing.
. . . .
. . . And, you know, in four days, you got to go back.
So my offer to you -- and I -- I make no judgment on you,
ma'am, because I think you've tried your best. I mean, you
even had your daughter try to take care of her. But [Child]
going do what [Child] wants to do --
[ADOPTIVE MOTHER]: Yes.
THE COURT: -- you know. She -- she's got a mind of
her own, and unfortunately, she's not making some good
choices. So if you'd like me to, I can set aside the
adoption, she can be back in DHS custody, and then we can
try to reunify her with her mom folks if that's what she
wants. But we got to get her back. So if -- if she -- if
we can get her back, we can try to do that. So it's up to
you. I don't want to make you go through a trial because a
trial, I mean, what -- what will that accomplish? Nothing
really, because we can't really force her to do anything.
As a judge, even me, I cannot force her to go anywhere or do
--
[ADOPTIVE MOTHER]: Yeah.
THE COURT: -- anything. So when I talk to kids, I
tell them you got to do this and if you don't do it, there's
consequences. You know what I mean? You got to go here,
stay there. But if they -- if they go there and they run
away, I mean, you know, the next thing is just try to do the
next step to try to help them.
So, [Adoptive Mother], it's up to you. If you want me
to go ahead and set aside the adoption today, that way, you
can go on living your life. Hopefully, she still have some
connection to you. You can talk to her and help her as you
can. But at least you will not be responsible for her.
She's back in the system. We don't know where she is.
We'll try to get her back, and we'll do our best to do that,
and then we can try, once we get her back, to try to see if
we can reunify her with her mother folks or with the oldest
sister. But we got to get ahold of them and see what their
status is and what their situation is even before we do
that.
So what -- what would you like me to do?
[ADOPTIVE MOTHER]: I -- I would like to move forward
with your suggestion to rescind it, not because I don't love
her but because I do love her and I don't think that I'm the
best person for her right now. It's not me. She needed me
when she was baby. But now that she's so old and she's
making her own choices and sadly it's not the right choices,
you know. I've been praying -- I pray for all my kids. I
pray that they all never have to go through this, and I get
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[Child] going through this, you know. But I would like to
rescind it so that she can get the proper care that she need
for -- to become a -- a contributing citizen to the
community.
THE COURT: Okay. And like I said, I make no judgment
on you. I believe that you've tried your best. You even
went to the extent of sending her to your daughter to try to
help her. [Child] is -- she's almost an adult. She's going
to have to make better choices for herself. And I'm hoping
she does. But in the meantime, I'm going to go ahead and do
what I said because you agree. I'm not doing it unless you
agree so if you --
[ADOPTIVE MOTHER]: I -- I agree.
THE COURT: If you agree, I'm going to set aside the
adoption, and I'm going to award foster custody to [DHS],
and then we'll go from there. Hopefully we can get her back
and try to help her the best that we can. I don't -- I
don't believe you neglected her. I think you tried your
best to help her. But at that age, she just have to make
better choices in her life. And hopefully we can help her
because it is not a safe world out there.
. . . .
. . . But in the meantime, I think the best course of
action is we try to help her from within -- within DHS and
try to assist her on the juvenile calendar, 'cause she got a
hearing, too, and do our best to get her back in from the
cold and try to help her to straighten up a little bit and
make some better choices for herself.
[ADOPTIVE MOTHER]: Thank -- thank you --
THE COURT: Okay --
[ADOPTIVE MOTHER]: -- you know.
THE COURT: -- so based on my conversation with
adoptive mother, I'm going to set aside the adoption, award
foster custody to the [DHS].
During the August 13, 2019 hearing on DHS's motion for
reconsideration, the family court explained:
Okay. Well, so we have a situation here where we have a
child that was basically out of control of an adoptive
mother. Adoption was performed here via DHS. And so she
sent her daughter to be with an older daughter. . . . And
then that daughter was not able to control her. . . .
. . . .
Anyway, with regard to adoptive mother, . . . she did
come in and tell me how it had stressed her and that the
daughter would not stay with her where -- where she's at. I
believe -- is she in Virginia?
. . . .
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. . . In Virginia. And the daughter was on the run.
So we have the girl back. The [adoptive] mother lives in
Virginia. It would do nothing. It would be no -- do no
good for this child to try to force her on an airplane to go
back to her mother -- her adoptive mother where she does not
want to be. She is here. Mother lives in Virginia.
[Child] will not go back. Sounds like a CPS case to me.
. . . [DHS's] motion [for reconsideration] is denied.
I believe it is in the best interest of this child that my
order is maintained. I do believe that this child can be
helped, but I think we need to help her from our vantage
point rather than sending her back to her [adoptive] mother
who cannot control her and most likely will find her back
here in Hawaii in no time if I were -- if -- even I were
able to get her to go back to Virginia. Therefore, based on
all of those factors and the fact -- in fact, I'm going to
appoint a -- an attorney for the girl.
. . . .
Okay, I'm going to appoint an attorney for the girl to
advocate for her rights, and then we'll go from there.
Based on the substantial evidence in the record, it
appears that the family court suggested and accepted Adoptive
Mother's relinquishment of parental rights to (in the words of
the court) "try to see if we can reunify [Child] with her
[biological] mother folks or with the oldest sister." However,
HRS § 571-61 provides, in relevant part:
(a) Relinquishment. The parents or either parent or the
surviving parent who desire to relinquish parental rights to
any natural or adopted child and thus make the child
available for adoption or readoption, may petition the
family court of the circuit in which they or he or she
resides, or of the circuit in which the child resides, or
was born, for the entry of a judgment of termination of
parental rights. The petition shall be verified and shall
be substantially in such form as may be prescribed by the
judge or senior judge of the family court.
To relinquish her parental rights, Adoptive Mother was required
to file a verified petition with the family court. Adoptive
Mother stated her desire to relinquish her parental rights during
the July 15, 2019 hearing in the Child Protective Act Case, but
the record does not reflect that Adoptive Mother was sworn to
tell the truth before her colloquy with the family court. The
family court exceeded its authority when it accepted Adoptive
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Mother's apparent relinquishment of parental rights without
following the procedure prescribed by HRS § 571-61(a).4
CONCLUSION
Based upon the foregoing, the "Orders [sic] Setting
Aside and Rescinding the Adoption Decree Filed on January 13,
2006[,]" entered in FC-A No. 05-1-0502 on August 13, 2019, is
vacated. The "Orders [sic] Concerning Child Protective Act"
entered in FC-S No. 19-00026 on August 13, 2019, is vacated,
without prejudice to further proceedings in the family court
consistent with HRS § 571-61.
DATED: Honolulu, Hawai#i, November 30, 2020.
On the briefs:
/s/ Katherine G. Leonard
Nara E. Sitachitta, Presiding Judge
for Petitioner-Appellant
State of Hawai#i /s/ Keith K. Hiraoka
Department of Human Services. Associate Judge
Crystal K. Glendon, /s/ Karen T. Nakasone
for Respondent-Appellee Associate Judge
Court Appointed Special
Advocates Program.
4
HRS § 571-61(b) (2018) authorizes the family court to
involuntarily terminate the parental rights of any legal parent on the grounds
set forth in the statute. The family court made no findings in the Child
Protective Act Case that would support involuntary termination of Adoptive
Mother's parental rights.
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