NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAY-2023
09:30 AM
Dkt. 67 MO
NOS. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
IN THE INTEREST OF KK
(FC-S NO. 19-00039)
AND
CAAP-XX-XXXXXXX
IN THE MATTER OF THE GUARDIANSHIP OF KK
(CASE NO. 1GD211006285)
APPEALS FROM THE FAMILY COURT OF THE FIRST CIRCUIT
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Wadsworth and Chan, JJ.)
In these consolidated appeals, Appellant Mother
(Mother) appeals from the following orders entered in the Family
Court of the First Circuit (family court): (1) the March 10,
2022 Orders Concerning Child Protective Act (CPA Orders), entered
in FC-S No. 19-00039 (CPA Case); and (2) the March 18, 2022 Order
Appointing a Guardian of a Minor (Guardianship Order), entered in
FC-G No. 21-1-6285 (Guardianship Case).1/ The CPA Orders revoked
Appellee Department of Human Services' (DHS) foster custody of
Mother's child, KK; denied Mother's February 1, 2022 Motion for
Family Supervision; and terminated the family court's
1/
The Honorable Jessi L.K. Hall presided over the consolidated trial
on the November 16, 2021 Petition for Appointment of Guardian of a Minor
(Guardianship Petition), filed in the Guardianship Case, and Mother's Motion
for Family Supervision, filed in the CPA Case, and entered the Guardianship
Order and the CPA Orders.
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jurisdiction. The Guardianship Order appointed KK's resource
caregiver, who is also KK's maternal uncle (Uncle), as KK's
guardian.
On appeal, Mother contends that the family court erred:
(1) in denying Mother's Motion for Family Supervision; (2) in
interpreting Hawaii Revised Statutes (HRS) §§ 587A-31 and 587A-32
(quoted infra), by failing to apply the "clear and convincing
evidence" standard; (3) in granting the Guardianship Petition;
and (4) in failing to make specific findings under HRS §§ 587A-31
and 587A-32 of "compelling reasons" why legal guardianship was in
KK's best interest. Mother also appears to challenge multiple
findings of fact (FOFs) and conclusions of law (COLs) in the
family court's April 26, 2022 Findings of Fact and Conclusions of
Law, entered in the CPA Case and the Guardianship Case.
For the reasons discussed below, we vacate the CPA
Orders and the Guardianship Order, and remand to the family court
for further proceedings.
I. Background
Starting in November 2018, DHS received multiple calls
of concern regarding KK and her three brothers (Children) due to
domestic violence between Mother and Father2/ (Parents) and
substance abuse by both Parents. On February 12, 2019, DHS
confirmed the threat of abuse and neglect of the Children, who
were placed in protective custody under HRS § 587A-8. On
February 15, 2019, DHS filed a Petition for Temporary Foster
Custody (Petition), initiating the CPA Case.
At the initial hearing for the CPA case, Parents
knowingly and voluntarily stipulated to the jurisdiction of the
family court, adjudication of the Petition, the award of foster
custody of the Children to DHS, and a service plan, which
included domestic violence education, a psychological evaluation,
a substance abuse assessment, random urinalysis, and parenting
education.
2/
Father does not appeal from the CPA Orders or the Guardianship
Order.
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Between August 2019 and January 2022, the family court
held periodic review and permanency hearings pursuant to HRS §§
587A-30 and -31 (quoted infra), to review Parents' progress in
services and their ability to provide a safe family home, to
review the safety and well-being of the Children, and to assess
case direction. Mother made enough progress with her services
that KK's three brothers were returned to Mother's care under
family supervision, on March 13, 2020, November 5, 2020, and
December 21, 2020, respectively.3/ Thereafter, family supervision
was automatically revoked as to the oldest brother when he turned
18, and following DHS's assessment that Mother was able to
provide a safe family home for the two younger brothers, the
family court revoked family supervision and terminated its
jurisdiction as to them.
However, KK remained in foster care from her initial
removal in February 2019,4/ and has remained in the care of Uncle
for several years. KK has stated that she wishes to stay in
Uncle's home and does not want to live with Mother, because
Mother does not acknowledge her feelings and is unable to meet
her emotional needs.
It appears that from the first review/permanency
hearing in August 2019, DHS identified a "[c]oncurrent permanency
plan" of "reunification" and "legal guardianship" for KK.
Similarly, from at least August 2020, the family court's post-
hearing orders stated that "[t]he proper concurrent permanency
plan" was "reunification" and "legal guardianship" for KK.
On November 16, 2021, DHS filed the Guardianship
Petition to have Uncle appointed as KK's legal guardian,
initiating FC-G No. 21-1-6285. Mother opposed the Guardianship
Petition and requested a trial.
3/
Parents were involved in a domestic violence incident on
October 7, 2020, and have not lived together since that time.
4/
In each periodic review/permanency hearing, the family court
continued foster custody of KK, as reflected in the court's Orders Concerning
Child Protective Act, entered on August 8, 2019, August 4, 2020, October 29,
2020, January 28, 2021, April 16, 2021, July 9, 2021, October 11, 2021, and
January 11, 2022, and in the court minutes dated January 22, 2020.
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On February 1, 2022, in the CPA case, Mother filed the
Motion for Family Supervision to have KK returned to her care.5/
DHS and KK's court-appointed guardian ad litem (GAL) opposed
Mother's motion.
On March 9 and 10, 2022, the family court held a
consolidated trial on the Motion for Family Supervision and the
Guardianship Petition. Following trial, the family court
determined that Mother was not presently willing and able to
provide KK with a safe family home, even with the assistance of a
service plan, and thus denied the Motion for Family Supervision.
The court further determined that Mother was not able to exercise
her parental rights as to KK, and the appointment of Uncle as
KK's legal guardian was in her best interest. The court thus
appointed Uncle as KK's legal guardian pursuant to HRS § 560:5-
204(b).6/
II. Standards of Review
Generally, the family court possesses wide discretion
in making its decisions and those decisions 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.
In re R Children, 145 Hawai#i 477, 482, 454 P.3d 418, 423 (2019)
5/
HRS § 587A-4 (2018) defines "family supervision" as "the legal
status in which a child's legal custodian is willing and able, with the
assistance of a service plan, to provide the child with a safe family home."
Under HRS § 587A-30(b)(1)(B) (2018), a child may be placed in family
supervision "if the court finds that the child's parents are willing and able
to provide the child with a safe family home with the assistance of a service
plan[.]" HRS § 587A-7(a) (2018) sets forth the factors the family court must
consider when deciding whether a child's parents are willing and able to
provide the child with a safe family home, with the assistance of a service
plan.
6/
HRS § 560:5-204(b) (2018) states:
(b) The court may appoint a guardian for a minor if
the court finds the appointment is in the minor's best
interest, and:
(1) The parents consent;
(2) All parental rights have been terminated; or
(3) The parents are unwilling or unable to exercise
their parental rights.
4
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(brackets omitted) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46,
137 P.3d 355, 360 (2006)).
"The family court's conclusions of law, on appeal, are
reviewed de novo under the right/wrong standard." Id. (citing In
re Jane Doe, 101 Hawai#i 220, 227, 65 P.3d 167, 174 (2003)).
"Statutory interpretation is a question of law reviewable de
novo." Id. (quoting State v. Wheeler, 121 Hawai#i 383, 390, 219
P.3d 1170, 1177 (2009)).
III. Discussion
Mother contends that because the CPA case originated
and proceeded for more than three years under the CPA, the family
court was required to decide the Motion for Family Supervision
and the Guardianship Petition in accordance with the procedures
and standards set forth in HRS §§ 587A-317/ and 587A-32,8/ and the
7/
HRS § 587A-31 (2018) provides, in relevant part:
(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:
. . . .
(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[.]
8/
HRS § 587A-32 (2018) provides, in relevant part:
(a) The permanent plan shall:
(1) State whether the permanency goal for the child will
be achieved through adoption, legal guardianship, or
permanent custody;
(2) Establish a reasonable period of time by which the
adoption or legal guardianship shall be finalized;
(3) Document:
(continued...)
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court erred in failing to do so. Specifically, in her second and
third points of error, Mother argues that the family court was
required, but failed, to "determine by 'clear and convincing'
evidence that Mother[] is not able to provide [KK] with a safe
family home, even with the assistance of a service plan, and
there are compelling reason(s) why legal guardianship is in
[KK]'s best interest."9/ In her fourth point of error, Mother
argues that the family court was required, but failed, to make
specific findings under HRS §§ 587A-31 and 587A-32 of "compelling
reason(s) why legal guardianship was in [KK]'s best interest[.]"
DHS, on the other hand, contends that HRS §§ 587A-2 and
587A-32 do not apply to "this case," and the family court
complied with HRS § 587A-31. Specifically, DHS argues that HRS
§ 587A-2, which references the clear and convincing evidence
standard (see supra note 9), does not apply because a
guardianship is not permanent, and under HRS § 560:5-204, the
termination of parental rights is not required to appoint a
guardian for a minor. Next, DHS argues that the family court
complied with HRS § 587A-31, as follows:
In a permanency hearing under HRS § 587A-31(d), the family
court must order only one of the following options "(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 order a permanent plan as described in
HRS § 587A-32 with a permanency goal of adoption, legal
guardianship, or permanent custody.
Here, DHS asserts, the family court complied with HRS
§ 587A-31(d) at each of the periodic review/permanency hearings
"by continuing foster custody over KK while concurrently working
8/
(...continued)
(A) A compelling reason why legal guardianship or
permanent custody is in the child's best
interests if adoption is not the goal; or
(B) A compelling reason why permanent custody is in
the child's best interests if adoption or legal
guardianship is not the goal[.]
9/
Mother also cites HRS § 587A-2 (2018) in support of her argument.
That section states, in relevant part, "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."
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with Mother to reunify with KK[,]" and thus "did not have the
option to order a permanent plan [under HRS § 587A-31(d)(3)] that
complied with the requirements of HRS § 587A-32." According to
DHS, although the court entered orders following each
review/permanency hearing that the "proper concurrent permanency
plan" was reunification and legal guardianship, the court did not
order a "permanent plan" under HRS § 587A-31(d)(3), and thus HRS
§ 587A-32 did not apply.
While this matter did not involve a termination-of-
parental-rights hearing, the supreme court's decision in R
Children, 145 Hawai#i 477, 454 P.3d 418, which addressed the
CPA's permanent plan requirement, is instructive. There, the
court addressed the interplay between two statutory provisions
that provide for the termination of parental rights — HRS § 587A-
33, a CPA provision, and HRS § 571-61(b)(1)(E), a family court
provision. Id. at 479, 454 P.3d at 420. The court held that a
father's parental rights could not be terminated based on the
family court provision, when the CPA provision contained a
requirement not present in the family court provision, i.e., that
the family court "find that the 'proposed permanent plan is in
the best interests of the child' before terminating a parent's
parental rights." Id. (quoting HRS § 587A-33(a)(3)). The court
explained: "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." Id. at 484, 454 P.3d at 425.
In reaching this conclusion, the court noted that the
CPA's permanent plan requirement "furthers the legislative intent
to serve the best interests of the child." Id. at 485, 454 P.3d
at 426. The court reasoned:
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.
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Comm. Rep. No. 236-86, in 1986 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.
. . . .
Moreover, the permanent plan requirement in the CPA
Provision adds an additional, specific criterion that we
cannot disregard. . . . 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.
Id. at 486, 454 P.3d at 427; see also id. at 487, 454 P.3d at 428
("The CPA envisioned the implementation of permanent plans to
bring safety and stability to the children within its
jurisdiction.")
Like R Children, the present matter involves the
interplay between seemingly similar statutory provisions
addressing children's needs, albeit provisions permitting the
placement of a child for legal guardianship without terminating
parental rights. Compare HRS §§ 587A-31(d)(3) (providing for a
permanent plan with a goal of placing the child for legal
guardianship) and -32 (stating the requirements for a permanent
plan) with HRS § 560:5-204(b)(1) and (3) (providing for
appointment of a guardian for a minor without terminating
parental rights). However, the relevant CPA provisions provide
for a specific permanent plan with a goal of "[p]lacing 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[,]" HRS § 587A-31(d)(3), as well as the other requirements
for a permanent plan, HRS § 587A-32. We conclude that these
specific CPA provisions controlled and should have been followed
in these cases, where the family court: (1) held proceedings,
including multiple permanency hearings, under the CPA for over
three years; (2) issued multiple post-hearing orders that
included legal guardianship as a permanency goal for KK; and (3)
ultimately denied KK's reunification with Mother, ended foster
custody over KK, and appointed Uncle as KK's legal guardian
without ordering a permanent plan that complied with HRS §§ 587A-
31(d)(3) and 587A-32.
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DHS is correct that at a permanency hearing, when a
family court orders a child's continued placement in foster care
under HRS § 587A-31(2), it is not required to order a permanent
plan under § 587A-31(3). It does not follow, however, that
having repeatedly invoked the CPA's permanency planning
provisions,10/ the family court could then disregard the CPA's
permanent plan requirement, through a proceeding that substituted
the guardianship provisions of HRS § 560:5-204(b) for those of
HRS §§ 587A-31(d)(3) and 587A-32. The consolidated trial on the
Motion for Family Supervision and the Guardianship Petition also
functioned in substance as a permanency hearing, at which the
court effectively denied KK's reunification with Mother (by
denying the Motion for Family Supervision) and ended foster care
over KK. However, no permanent plan was prepared, considered or
ordered pursuant to HRS §§ 587A-31(d). The court instead relied
on the provisions of HRS § 560:5-204(b) to appoint Uncle as KK's
guardian. This substitution, where the applicable CPA provisions
contained a requirement not present in the guardianship
provisions of HRS § 560:5-204(b), was error. See R Children, 145
Hawai#i at 484, 454 P.3d at 425. Because this error infected the
family court's intertwined analysis of the Motion for Family
Supervision and the Guardianship Petition, the CPA Orders and the
Guardianship Order must be vacated. See id. at 487, 454 P.3d at
428.
Given our decision, we do not reach Mother's remaining
points of error, including her summary challenge to the multiple
FOFs and COLs listed in her abbreviated opening brief.
IV. Conclusion
For the reasons discussed above, we vacate the
following orders entered in the Family Court of the First
10/
At a permanency hearing, the family court may find that legal
guardianship is an appropriate "permanency goal" for a child, HRS § 587A-
31(c)(5), and a permanent plan may state that the "permanency goal" for a
child will be achieved through legal guardianship, id. § 587A-32(a)(1). HRS
§ 587A-31(d)(3) makes clear that such a permanency goal can be placing the
child for legal guardianship without terminating parental rights. Here, in
fact, the family court issued multiple post-permanency hearing orders that
included legal guardianship as a permanency goal for KK.
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Circuit: (1) the March 10, 2022 Orders Concerning Child
Protective Act, entered in FC-S No. 19-00039; and (2) the March
18, 2022 Order Appointing a Guardian of a Minor, entered in FC-G
No. 21-1-6285. We remand these cases to the family court for
further proceedings consistent with this opinion.
DATED: Honolulu, Hawai#i, May 18, 2023.
On the briefs:
/s/ Katherine G. Leonard
Randal I. Shintani, Presiding Judge
for Mother-Appellee.
Kurt J. Shimamoto, /s/ Clyde J. Wadsworth
Julio C. Herrera, Associate Judge
Patrick A. Pascual, and
Regina Anne M. Shimada,
Deputies Attorney General, /s/ Derrick H.M. Chan
for Petitioner-Appellee. Associate Judge
Emily M. Hills, and
Mary Pascual
(Legal Aid Society of Hawaii)
for Guardian Ad Litem
10