… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
16-DEC-2019
02:31 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI I
---o0o---
IN THE INTEREST OF AB
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-S NO. 15-0007)
DECEMBER 16, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
AMENDED OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
This case requires us to address the proper
consideration and weight of a hānai 1 relationship in the context
of a child welfare proceeding. We conclude that a hānai relative
1
“Meaning ‘to feed’ or ‘to nourish,’ hānai refers to a child who is
reared, educated, and loved by someone other than the child’s natural
parents.” Native Hawaiian Law: A Treatise 1140 (Melody Kapilialoha MacKenzie
with Susan K. Serrano, D. Kapua ala Sproat, eds., 2015) (citation omitted).
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
who is a child’s resource caregiver has an interest in that
child’s custody sufficient to allow intervention in such
proceedings under Rule 24(a)(2) of the Hawai i Family Court Rules
(HFCR). In addition, we conclude that, when conducting a best
interest of the child analysis, family courts must consider that
child’s hānai relationships.
The case involves a 7-year-old child, AB, who is now
12. After a short time in foster care, AB reunified with her
father and lived in a home with him, his longtime girlfriend, KL,
and their child, AB’s younger half-sister. AB’s father moved out
a few months later, but AB, as keiki hānai 2 of KL, remained in
the same home with her. AB lived there for over a year until the
family court changed her placement to her maternal great-aunt and
-uncle’s home in New Hampshire.
At the hearing changing AB’s placement, KL
unsuccessfully urged the family court to recognize her interest
in the proceeding.3 KL appealed, and the ICA vacated the family
court’s order denying intervention, holding that because KL had
filed a petition to adopt AB, she had a sufficient interest in
AB’s custody or visitation to intervene as a matter of right. KL
filed an application for certiorari seeking this court’s further
review. She argues that, in addition to her pending adoption
petition, her status as a hānai relative conferred a substantive
2
As discussed further below, KL’s hānai status is undisputed.
3
The Honorable Darien W.L. Ching Nagata presided.
2
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
interest in AB’s placement.
We accepted certiorari to clarify that the family court
should have allowed KL to intervene during AB’s placement hearing
based in part on her status as AB’s hānai parent. The family
court committed an additional error when it failed to examine
AB’s best interests prior to changing her placement to New
Hampshire. And, as part of the best interests analysis, the
family court should have considered AB’s hānai relationships.
II. BACKGROUND
AB was born to her mother, SH (“Mother”), and her
father, JB (“Father”). Mother and Father were never married. AB
has two younger maternal half-siblings, PD and Baby, 4 from
Mother’s other relationships. Mother is originally from New
Hampshire and has a large extended family there, including her
aunt, SH. Father is from Hawai i and has Native Hawaiian
ancestry. Father began a relationship with the petitioner, KL,
who also has Native Hawaiian ancestry, when AB was around three
years old. The parties agree that KL is AB’s hānai relative. 5
4
Baby was placed in a separate resource home, and was adopted by
his foster family.
5
Because KL’s hānai status is undisputed, we need not determine
exactly what relationships will be recognized as hānai in the context of child
welfare proceedings. As noted further below, Hawai i statutes, administrative
rules, and historical materials on Native Hawaiian law define the term “hānai”
slightly differently. We do not here decide between these definitions, nor do
we limit the applicability of the rule announced herein to relationships
factually identical to the relationship between KL and AB.
3
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
A. Family Court Proceedings
1. Initiation of Foster Custody
On January 29, 2015, shortly after Mother gave birth to
Baby, the Department of Human Services (“DHS” or “Department”)
initiated protective proceedings with respect to Mother’s three
children, including AB, by filing a Petition for Temporary Foster
Custody. The family court granted temporary foster custody.
2. Reunification with Father
AB was unable to live with Father when the Department
initiated protective proceedings because Father was living at his
parents’ home, and his father was a registered sex offender.
However, Father began actively looking for housing, and AB and
Father had regularly scheduled supervised visits. In accordance
with a family service plan, Father engaged in services with the
hopes of reunifying with AB.
According to a March 3, 2015 Ohana Conference Report,
Father and AB had “a strong support in [Father]’s partner, [KL].”
Father and KL had been in a relationship for several years, and
they had a child together, TL (AB’s paternal half-sister). In a
June 5, 2015 Safe Family Home Report, the Department stated that
AB “asked Father if she can live with him, and she also asked her
[paternal] half-sister’s mother, [KL], if she can live with her
as well.” Father and KL began renting a home together in late
2015.
On January 26, 2016, the family court approved the
4
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
Department’s permanency plan to reunify AB with Father, as Father
was “continu[ing] to work on services that will assist [him] with
reunification.”
On March 2, 2016, KL underwent a psychological
evaluation to determine her ability to parent AB. KL indicated
that she had been involved in AB’s life for approximately five
years, and that during her periods of separation with Father, KL
kept in touch with AB and Mother so that AB and TL could have
contact. The Safe Family Home Report dated May 23, 2016 stated,
“The evaluation did not find any deficits in [KL’s] ability to
take care of [AB][.]”
On March 18, 2016, AB was reunified with Father, TL,
and KL under an award of Family Supervision, as the Department
found, and the court agreed, that Father was able “to provide a
minimally safe family home for [AB] at this time with the
assistance of a court-ordered service plan.”
3. SH’s First Motion to Intervene
On February 19, 2016, AB’s maternal great-aunt, SH,
filed a Motion to Intervene. SH argued that she was entitled to
intervene pursuant to HFCR Rule 24. 6 SH sought to intervene to
6
HFCR Rule 24 states in relevant part:
Upon timely application anyone shall be permitted to
intervene in an action when the applicant claims an
interest relating to the . . . custody, visitation, or
parental rights of a minor child which is the subject
of the action and the applicant is so situated that
the disposition of the action may as a practical
matter impair or impede the applicant’s ability to
(continued...)
5
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
ensure that the court was aware of “the concerns of the maternal
extended family” and “to give [the] [c]ourt and the Department
another placement option[.]” SH claimed that she was “not
seeking custody” and “only want[ed] to support [PD’s and AB’s]
fathers and be a second option if necessary[.]” SH noted,
however, that she had “submitted the necessary paperwork (which
the Department is mandated to consider) necessary to be
considered a placement option,” and she argued that she “has the
legal right to seek custody, should that become necessary,
pursuant to [HRS] § 571-46(a)(2).” 7 DHS opposed SH’s Motion to
Intervene.8 The court denied the Motion without explaining its
reasoning.
4. Reinstatement of Foster Custody
On May 20, 2016, the Department submitted a report to
6
(...continued)
protect that interest, unless the applicant[’]s
interest is adequately represented by existing
parties.
7
HRS § 571-46(a)(2) states that in any proceeding where the custody
of a minor child is in dispute, “[c]ustody may be awarded to persons other
than the father or mother whenever the award serves the best interest of the
child.”
8
On March 22, 2016, the Department filed a memorandum in opposition
to SH’s motion to intervene, arguing that SH did not have a right or
permission to intervene under HFCR Rule 24(a) or (b). The Department argued,
“The movant has no right to custody, visitation, nor is she the parent of
these children. . . . She has no legal interest. As a matter of fact Movant
asserted in her moving papers that she does not want custody.”
The Department also argued that SH improperly relied on HRS § 571-
46 to support her position. “Movant has asserted that she does not intend to
interfere or obtain custody. More importantly this statute section does not
apply as these children have never lived with the movant[;] she has never had
de facto custody of the children.”
6
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
the court in advance of the next hearing. The Department
reported that Father and KL “are unsure at this point if they are
going to stay together[.]” The Department noted, however, that
both “have agreed to co-parent their daughter and [AB], whatever
the outcome. [KL] has been very loving and involved with [AB],
and the girl is bonded with her.” At the time, the Department
recommended continuing family supervision.
AB continued to live with KL. The Department reported
that “[AB] is doing well, and bonded with [KL]. [KL] would like
to become [AB’s] special licensed resource caregiver.” 9 While
the Department noted that “Father has had visits with [AB], and
helps co-parent her,” it changed its recommendation from
continued family supervision to foster custody, given Father’s
new living arrangement - back at home with his father.
After a hearing held on June 2, 2016, the family court
placed AB in foster custody and formalized AB’s “placement with
her hanai relative, [KL].”
Over four months later, on October 17, 2016, the
Department reported that Father had “not engaged in services or
moved back into the family home since the last hearing held on
June 2, 2016.” The Department indicated, “As a result, [AB] is
in Foster Custody with the DHS, but was able to remain in [KL]’s
care. [KL] applied for, and qualified to be, a DHS special
9
17 HAR § 1625 provides for licensing of foster families as
“resource caregivers.”
7
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
licensed resource parent to [AB]. [AB] is very bonded with [KL],
who is the mother to [AB]’s half sister, and has known her
several years prior to placement.”
The Department further reported that since the last
review period, Father had minimal contact with KL and DHS, and
had not followed through with any recommended services. The
report provided, “[AB] has visits with paternal and maternal
relatives and enjoys spending time with them. [KL] makes efforts
to ensure [AB] has family visits with her relatives” and “has
made efforts to encourage Father to see his daughter, but without
success.”
The report noted that AB’s maternal relatives,
including her maternal great-aunt, SH, recently visited AB and PD
in Hawai i. “Maternal great aunt has expressed to this worker
her concerns for [AB], and has requested to be considered for
permanent placement since [Father] has not successfully reunified
with his daughter. An [Interstate Compact on Placement of
Children (ICPC) study] has been generated by the DHS in order to
consider her request.”
5. Termination of Parental Rights, Permanent Plan, and
Order Awarding Permanent Custody to the Department
On November 2, 2016, the Department filed a Motion to
Terminate Parental Rights, which was set for hearing on March 10,
2017. Attached to the Motion was a Permanent Plan dated
8
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
November 1, 2016.10 As outlined in the Plan, the Department’s
permanency goal for AB was for “[p]arental rights to be divested
at the next court hearing” and for AB “to be under permanent
placement with DHS by the next court hearing.” In relevant part,
the plan stated:
Child’s current situation
[AB], nine-years-old, is a smart, outgoing and active
young lady. She has demonstrated a lot of resiliency
and is doing very well in her current placement.
Prior to this placement, she had been living in a DHS
general licensed resource home with her sister, PD,
before they were both reunified with their respective
fathers. [AB] has bonded with [KL], and considers her
to be her hanai aunty. [KL] has a younger daughter by
[Father], so [AB] is able to live with her half-sister, as well.
. . .
Connections
Besides living with [her paternal half-sister, TL],
[AB] has visits with [her maternal half-sister, PD],
as well as other extended maternal and paternal
family. [AB] has not had visits with her parents for
several months due to their lack of contact.
. . .
Placement
. . .
Assessment of the safety of the child’s placement:
There are no safety indicators in this current
placement at this time. A Safety of Placement
Assessment completed on October 26, 2016, indicates
10
Pursuant to HRS § 587-27, the Permanent Plan “is a specific
written plan, prepared by an appropriate authorized agency,” that must set
forth information about the plan for the child in foster custody. Among other
things, the Permanent Plan must include “[a] position as to whether the court
should order an adoption, guardianship, or permanent custody of the child,”
and “[t]he objectives concerning the child, including, but not limited to,
stable placement, education, health, therapy, counseling, birth family . . .
culture, and adoption, guardianship, or preparation for independent living.”
9
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
this home is safe and appropriate for [AB].
. . .
Has the current placement been identified as the
Child’s permanent placement?
The child’s current placement is a possible permanent
placement, as [KL] has expressed the desire to adopt
[AB].
. . .
Is the Child’s placement stable?
The placement is considered a stable placement at this
time.
. . .
PERMANENCY PLANNING
A. DHS efforts to finalize permanency plan
. . .
5. Indicate all in-state and out-of-state placement
options reviewed and considered.
Maternal family members11 from the mainland
participated in two Ohana Conferences, and were
willing or able to provide [AB] a long-term, safe
family home. An ICPC has been generated in order to
explore this as an option.
. . .
7. Efforts made to include and inform [AB] of the
proposed permanent plan or transition plan in a manner
that was age-appropriate.
[AB] is very happy in her current placement, and has
expressed to DHS that she would like to remain in
[KL]’s care.
On February 27, 2017, prior to the hearing on the
Department’s Motion for Termination of Parental Rights and
11
This appears to refer to SH and JH.
10
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
proposed Permanent Plan, the Department filed a Safe Family Home
Report.12 The content and tone of this report differed from the
November 2016 Permanent Plan in that it emphasized the
willingness of AB’s maternal great-aunt to adopt her, but did not
mention KL’s expressed desire to do the same. This report also
failed to mention AB’s ties to her half siblings or extended
paternal family. The Department did not explain this shift in
focus from KL toward AB’s maternal relatives.
On March 10, 2017, the court held a hearing on the
Motion to Terminate Parental Rights. KL attended; 13 Mother and
Father did not. After hearing evidence and argument, the court
stated its findings, divested Father and Mother of their parental
rights, appointed the Department as permanent custodian of AB,
and adopted the terms of the November 2016 Permanent Plan, which
appeared to favor placement with KL. The court dismissed Mother
and Father as parties and set a permanency review adoption
hearing for August 3, 2017.14
12
The Safe Family Home Report has two parts. “The first section is
the narrative discussion of the information requested by the Safe Family Home
Guidelines” set forth in HRS § 587A-27. DHS Child Welfare Services Procedures
Manual § 3.3. “The second section is a listing of the guidelines as they
appear in HRS [§] 587-25.” Id. The guidelines were originally set forth in
§ 587-25 but were moved to § 587A-27 in 2010.
13
KL had the authority to attend this hearing pursuant to HRS
§ 587A-14(d), which provides that “[t]he child’s current resource family is
entitled to participate in the proceedings to provide information to the
court, either in person or in writing, concerning the current status of the
child in their care.”
14
It is not clear from the record whether this date was meant to be
a hearing on a specific pending adoption petition or merely a permanency
hearing required under HRS § 587A-31(a) to be held “every six months [ ] if
(continued...)
11
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
On April 3, 2017, the court entered its written Order
Awarding Permanent Custody, which contained the same findings and
conclusions stated in its oral ruling, but also included Finding
of Fact G, which stated, “Currently there is no responsible and
competent substitute family willing and able to assume the duties
of permanent custody of the child[.]”
6. Proposal to Visit New Hampshire
On March 17, 2017, one week after the hearing, the
Department submitted a letter to the court proposing that AB
visit her relatives in New Hampshire during her summer vacation.
The letter requested travel from June 1, 2017 to July 7, 2017,
and explained:
[AB]’s maternal great aunt and uncle, [SH] and [JH],
are interested in adopting [AB]. The [Department]
would like to allow the child to spend some time with
them beforehand, to get better acquainted. The DHS
believes this would help the child and the extended
family prepare for this transition before the adoption
hearing. [SH] has agreed to escort [AB] both to and
from New Hampshire for this trip.
If the extended visit goes well, [SH and JH] have
agreed to fly back to Hawai i to attend the adoption
hearing, then take [AB] back with them to their home
in New Hampshire. The DHS was awarded Permanent
Custody of [AB] on March 10, 2017.
The adoption hearing is scheduled for August 3, 2017,
at 2 p.m. A home study by the DHS, via an ICPC, was
completed on January 18, 2017, which found [SH’s] home
appropriate for placement.
On March 22, 2017, twelve days after the termination
14
(...continued)
the child remains in the permanent custody of the department or an authorized
agency.”
12
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
hearing, the Department submitted a report to the court regarding
AB’s status. The report noted that AB’s maternal great-aunt, SH,
has “continued to express great desire and interest in [AB]’s
well-being” and that AB’s visit to New Hampshire over summer
break will “allow them the opportunity to bond as well as explore
possible permanent placement, if all goes well.” The report also
noted, however, that KL, “as well as [the father of AB’s maternal
half-sister, PD], have also expressed interest in adopting [AB].
All of these placements are under consideration by the DHS, and a
decision is hoped to be made by the next review hearing.”
On April 3, 2017,15 AB’s GAL, Kay Iopa, submitted a
status report to the court concerning the Department’s travel
request. The GAL stated:
On March 23, 2017, I reviewed a file stamped travel
letter/order. Said document indicates I was
contacted. That is true. However, the document omits
the fact that I strongly opposed the travel as
scheduled.
Further, I also oppose the permanent placement of [AB]
in her current foster home. Repeated efforts have
been made to discuss this with DHS, but DHS disregards
GAL’s concerns.[16]
15
The GAL dated the letter and the certificate of service April 4,
2017. However, the letter was file-stamped by the court on April 3, 2017 at
10:52 a.m.
16
This was the first instance in the record in which the GAL
directly stated her opposition to AB’s permanent placement with KL. She did
not explain why she was opposed. However, between the November 2016 Permanent
Plan, which was favorable to KL, and the GAL’s April 2017 opposition to AB’s
placement with KL, KL had requested respite care for “seven to ten days” due
to AB’s behavioral challenges. DHS Case Manager Michelle Starosky denied KL’s
request and indicated that placing AB with another resource caregiver for that
time would be detrimental to her. Respite care was thus not utilized. After
this incident, DHS “began to look more seriously at the other [placement
(continued...)
13
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
It would appear that the Court will need to make
appropriate rulings regarding travel and adoption at a
contested hearing.
On May 8, 2017, the GAL filed a Motion to Modify Travel
Order or Alternatively Advance Adoption Hearing, asking that AB
remain in New Hampshire after she arrives, rather than returning
to Hawai i, pending adoption by her maternal extended relatives.
In the GAL’s declaration, she explained in relevant part:
3. [SH] and [JH] . . . have repeatedly told me they
want to adopt [AB].
4. A home study was conducted in January 2017 and [SH
and JH’s] home was found appropriate for placement;
5. I am aware that DHS has arranged for [AB] to visit
[SH and JH] in New Hampshire for less than 30 days
this summer;
6. As GAL, I find this visit is appropriate as [AB]
has never been to New Hampshire and her only contact
with [SH and JH] has been during their trips to
Hawai i and by telecommunication;
7. However, I have grave concerns about the travel
schedule which leaves [AB] and [SH and JH] in a state
of monthly cross-continental travel and uncertainty;
and
8. Therefore, as GAL, I believe it is in [AB’s] best
interest to remain in New Hampshire till the August 3,
2017 adoption hearing or advance the adoption hearing
to July 7, 2017 when [AB] is scheduled to return to
Hawai i.
16
(...continued)
options]” for AB.
The GAL’s April 2017 report also did not address AB’s wishes with
respect to the New Hampshire visit or her permanent placement. As of this
point, the most recent indication in the record of AB’s wishes is in the
November 2, 2016 Permanent Plan, which stated: “[AB] . . . has expressed to
[DHS] that she would like to remain in [KL]’s care.”
14
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
A hearing on the GAL’s motion was scheduled for
June 22, 2017.17 The length of AB’s trip to New Hampshire was
therefore not entirely settled by the time her trip began on
June 11, 2017.
7. SH’s Second Motion to Intervene
On June 14, 2017, a few days after AB arrived in New
Hampshire, SH filed a second Motion to Intervene. 18
The Department filed a memorandum in opposition to this
motion, arguing that SH did not establish that she had a right to
intervene pursuant to HFCR Rule 24(a) or permission to do so
pursuant to Rule 24(b).19 After a hearing on June 22, 2017, the
17
The hearing on this motion was held on July 13, 2017.
18
Citing communication issues with the Deputy AG, SH sought to be a
party to ensure “that appropriate coordination and communication may take
place and so that [SH and JH] have a representative . . . to advocate for them
with regard to this matter.” SH argued that she had a right to intervene
under Hawai i Rules of Appellate Procedure (HRAP) Rule 24(a)(2) due to her
interest in adopting AB. “In light of the fact that the DHS is considering [SH
and JH] as adoptive parents for [AB],” SH argued, “they have a cognizable
legal interest in the custody of [AB].”
Moreover, SH argued that she and her husband had a right to
intervene because of their blood relationship to her. According to SH, if she
were “not permitted to intervene at this time,” then her “interest in making
sure that [AB] is placed in a safe and loving home that is prepared to be a
permanent placement may not receive adequate consideration[.]” SH argued that
“[d]ecisions regarding placement and/or adoption made without [SH’s] input
. . . could impair or impede” her ability to protect her interest in adopting
AB.
Further, SH argued that she should be considered a “party” to the
case pursuant to HRS § 587A-4, which defines a “party” to include “any other
person . . . if the court finds that such person’s participation is in the
best interest of the child.” SH argued that allowing her to intervene would
be in AB’s best interests because it would require the court to decide as soon
as possible which home placement is best for AB.
19
In addition, the memorandum states that “DHS is already addressing
[SH]’s concerns. She is being informed of case status, offered phone
(continued...)
15
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
court denied SH’s motion.
8. July 13, 2017 Hearing
On July 13, 2017, the Family Court held a status
hearing on the GAL’s Motion to Modify Travel Order or
Alternatively Advance Adoption Hearing. Shortly after the
hearing began, the GAL and the Department stated that they both
now agreed to change AB’s foster placement to New Hampshire and
continue the adoption hearing. KL, who was in attendance, then
caught the court’s attention and indicated she would like to
speak. Over the Department’s and GAL’s objections, the court
allowed KL to provide her input on AB’s situation based on KL’s
status as AB’s resource caregiver.
KL presented a statement emphasizing her prominent role
in AB’s life, “not only as a resource caregiver but as a hanai
auntie, stepmom, and mother of her biological paternal half
sibling, [TL], who she currently resides with.” KL stated that
“[AB] also sees paternal family regularly, aunties, uncles,
cousins, as well as my family who have hanaied her as their own.”
KL went on to say that she felt “as if nobody is looking into
[AB’s] life here and now and exactly how much she is thriving but
instead assuming her life will be better in New Hampshire.” KL
asked that the family court “make things pono with this case” and
19
(...continued)
visitation and was allowed to have the child for one week while she was on
Hawai i Island and it is my belief that the child is having her first visit in
[their] home now.”
16
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
requested “a restraining order be placed on this case to keep
things status quo, have [AB] [ ] flown back to Hawaii until this
matter gets properly addressed by the court and provide me time
to seek adequate legal counsel.” She further stated that she
“provided for and love[s] [AB] and want[s] to continue to love
and provide for [her] through adoption.” KL stated:
[AB] was told, as was I, by [DHS Case Manager Michelle
Starosky], that she would be in New Hampshire for a
month to allow her time to visit and get to know them,
to see if there was a possibility she may want to live
there . . . I realized I had been outright lied to,
manipulated and suppressed[.]
When KL finished, the family court stated, “Okay. Thank
you for that input.” The court did not rule on or further
acknowledge KL’s requests, nor did it orally state any findings
or issue any orders.
9. July 31, 2017 Order Continuing Permanent Custody and
Changing AB’s Placement to New Hampshire
On July 31, 2017, the Family Court entered an Order
Continuing Permanent Custody, which modified AB’s placement from
KL’s home to the State of New Hampshire, with SH and JH. The
Order did not mention KL’s requests from the hearing. 20
20
The Order is somewhat cryptic. It is reproduced here:
/ Under the circumstances that are presented in this
case, DHS has made reasonable efforts to finalize the
permanency plan which in this case is permanent out of
home placement;
| It is in the best interests of the child that the
prior award of permanent custody be continued in her
new placement located in New Hampshire with [SH and
JH];
(continued...)
17
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
10. Petitions for Adoption
On August 21, 2017, the Department filed a Petition for
Adoption of AB by SH and JH, FC-A No. 17-1-0029. The hearing was
scheduled to take place September 7, 2017. 21
Previously, on July 13, 2017, KL had filed a pro se
petition for non-consent adoption of AB, FC-A No. 17-1-0019. It
appears that there was no Notice of Hearing or Certificate of
Service with this petition.
11. KL’s Motion to Intervene
On August 21, 2017, KL, having obtained counsel, filed
a Motion to Intervene. KL argued that she had a right to
intervene pursuant to HFCR Rule 24(a) and (c). She sought “to
protect the best interests of [AB], for whom [KL] has assumed the
role of parent and established a bonded relationship, and for
whom she was providing a stable and healthy home environment
until the abrupt change of placement[.]” She also sought “to
20
(...continued)
/ The permanent plan dated November 1, 2016 is in
the best interest of the child;
/ The present placement is appropriate, safe, and
necessary[.]
Although it is unclear, it appears that the family court used proposed
findings of fact submitted by the AG’s office, marking with slashes those
findings it chose not to adopt, and numbering sequentially those it did adopt.
Under this reading, the vertical line in front of the second finding above is
actually the number 1. If this interpretation is correct, this Order
indicates a reversal of the family court’s April 3, 2017 adoption of the terms
of the November 1, 2016 permanent plan. There is no explanation for this
reversal.
21
The ROA in the instant case refers to the adoption proceedings,
but does not include records from them.
18
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
protect her own rights as Hanai relative to [AB], and to protect
and defend her minor daughter [TL]’s rights as blood sibling to
[AB].”
KL stated that she wished to adopt AB, and argued that
the Department and GAL’s positions were contrary to AB’s best
interests and based on a “relative preference” that was found
impermissible in In re AS, 132 Hawai i 368, 322 P.3d 263 (2014).
KL requested that the court grant her status to
intervene nunc pro tunc to July 13, 2017. KL argued, “Despite
the surreptitious and abrupt manner in which the change of
placement was brought up, and even without the benefit of
counsel, [KL] made a Motion to the Court orally on July 13,
seeking to obtain relief on the grounds incorporated in the
present Motion,” stated in the letter she read aloud at the
hearing. Noting that she “asked the [c]ourt to make things pono,
maintain the status quo, and allow her time to seek legal
counsel” at the July 13 hearing, KL argued that such requests
should be construed as a motion to intervene.
The GAL submitted a memorandum in opposition to KL’s
Motion to Intervene. The GAL argued that KL “urges the [c]ourt
to engage in a giant leap of judicial activism” by recognizing
KL’s right to intervene based on the hānai tradition. She
contended that it would “create a whole new right superior of
parental rights,” that would survive termination of parental
rights. As such, the GAL argued that KL “failed to present legal
19
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
authority to establish her right to intervene.” The Department
also opposed the motion, arguing that KL “has no legal interest”
to support a right to intervene, as she has “no right to custody
[or] visitation, nor is she the parent of this child.” The
Department argued that allowing KL to intervene “may cause delays
and prejudice to the remaining parties.”
On September 5, 2017, KL submitted a Supplemental
Memorandum in Support of Motion to Intervene. KL argued that she
was entitled to challenge the Department’s placement of AB in New
Hampshire because her interests as a hānai parent 22 constitute
“an interest relating to the . . . parental rights of a minor
child” under HFCR Rule 24(a)(2). She also argued that she was
entitled to intervene to protect her daughter’s inheritance
rights, citing HRS §§ 532-4 and -8.
KL argued that it would be in the best interest of AB
to add KL as a party, and thus the court should define KL as a
“party” under HRS § 587A-4.
12. September 7, 2017 Hearing
On September 7, 2017, the court held a hearing on KL’s
Motion to Intervene. After hearing the parties’ arguments, the
court stated that while KL’s counsel “[did] raise issues that the
22
KL argued that she was a hānai relative as defined in HRS § 587A-
4. In this chapter, part of the Child Protective Act, “hanai relative” is
defined as “an adult, other than a blood relative, whom the court or
department has found by credible evidence to perform or to have performed a
substantial role in the upbringing or material support of a child, as attested
to by the written or oral designation of the child or of another person,
including other relatives of the child.” As noted previously, KL’s hānai
status is not in dispute.
20
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
court may need to address,” it was denying KL’s motion based on
the reasons set forth in the Department’s memorandum in
opposition.
13. September 18, 2017 Permanent Plan
On September 18, 2017, the Department submitted a new
Permanent Plan, which stated the goal of adoption by SH and JH at
the next court hearing, scheduled for November 2, 2017.
14. KL’s Motion for Reconsideration of the Order Denying
the Motion to Intervene
The court entered a written order denying KL’s Motion
to Intervene on October 9, 2017. Thereafter, on October 17,
2017, KL filed a Motion for Reconsideration pursuant to HFCR Rule
59. At a hearing on November 6, 2017, the court addressed KL’s
Motion for Reconsideration and a few other pending matters.
The court held that because it had already consolidated
the competing adoption petitions and allowed the parties to
access the documents from the original child welfare case, the
motion to reconsider was moot. The court filed a written order
denying the motion on December 21, 2017, and KL timely appealed.
The adoption evidentiary hearing was scheduled for
January 29, 2018.
15. Mandamus Petition
On December 15, 2017, KL filed a petition for writ of
21
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
mandamus to this court.23 This court denied mandamus relief.
B. ICA Proceedings
1. Opening Brief
On appeal, KL challenged: (1) the Order Awarding
Permanent Custody, entered April 3, 2017; (2) the Order
Continuing Permanent Custody, entered July 31, 2017; 24 (3) the
Order Denying Motion to Intervene entered October 9, 2017; and
(4) the Order Denying Motion for Reconsideration of Order Denying
Motion to Intervene entered October 9, 2017, entered December 21,
2017.
Regarding the April 3 Order Awarding Permanent Custody,
KL challenged Finding of Fact G - “Currently there is no
responsible and competent substitute family willing and able to
assume the duties of permanent custody of the child” - as plain
error. KL argued that pursuant to HRS § 587A-33(a), “the court
was required to find by clear and convincing evidence that the
proposed Permanent Plan is in the best interest of the child, and
to presume that it was in the child’s best interest to be
23
KL sought an order directing Judge Nagata to (1) grant her
August 21, 2017 Motion to Intervene in FC-S No. 15-0007 nunc pro tunc to
July 13, 2017 (the date of the change of placement hearing); (2) grant her
August 21, 2017 Motion for an Emergency Change of Placement; (3) release to
her the complete transcripts of the proceedings held on September 7, 2017,
November 2, 2017, and November 6, 2017 in FC-S- No. 15-0007; (4) vacate the
April 3, 2017 Order Awarding Permanent Custody of AB to DHS; and (5) recuse
herself from further presiding over FC-S No. 15-0007, FC-A No. 17-0019, and
FC-A No. 17-0029.
24
KL argued that she did not discover the errors from (1) the Order
Awarding Permanent Custody and (2) the Order Continuing Permanent Custody
until after her Motion to Intervene and Motion for Reconsideration were
denied.
22
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
permanently placed with responsible and competent substitute
parents in a safe and secure home.” While Finding of Fact G
stated that there was no suitable substitute family, no evidence
was introduced to support that finding.
Regarding the Order Continuing Permanent Custody, KL
challenged the Finding of Fact that “[i]t is in the best interest
of the child that the prior award of permanent custody be
continued in her new placement located in New Hampshire” as plain
error. KL argued that pursuant to HRS § 587A-31(c), the court
must make written findings including, among other things, “(2)
[w]hether 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[.]” The
court concluded that placing AB in New Hampshire would be in her
best interests without first “addressing whether the current
placement with [KL] continued to be appropriate.” Thus, KL
argued, the court’s failure to state its findings regarding AB’s
current placement at the time was plain error.
Moreover, KL argued that under In re AS, 132 Hawai i
368, 322 P.3d 263, the court “is the final arbiter of whether a
proposed change in placement is in the best interests of a
minor,” and the court should reject the Department’s placement
decision “if it is shown by a preponderance of the evidence that
the change of placement is not in the child’s best interests.”
KL contends that she “had a right to dispute the Department’s
23
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
proposed change of placement, and the [c]ourt was required to
make an independent determination of the matter.” According to
KL, “[t]he failure of the [c]ourt to make an independent
determination before adopting the Department’s recommendation was
plain error.”
Furthermore, KL argued that the Department’s
recognition of KL as AB’s hānai mother “granted her legal status
as AB’s relative, and her home as AB’s family home.” She argued
that this recognition conferred a benefit to KL, AB, and TL “by
recognizing their traditional Hawaiian Ohana as a family,” and
thus the Department was required to give them “a fair opportunity
to be heard and a fair process by which it would be determined
that their family would be broken up against their will, before
taking action to separate them.” In support of this due process
argument, KL cited Morrissey v. Brewer, 408 U.S. 471, 481 (1982),
Goldberg v. Kelly,
397 U.S. 254 (1970), and Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
Regarding the Order Denying Motion to Intervene, KL
argued that the court erred by denying this motion based on lack
of standing, rather than addressing the merits of her challenge
to the Department’s placement decision. She contended that the
court “adopted the Department’s argument that [KL] was merely a
former resource care-giver without an interest in the case,
overlooking the nunc pro tunc character of the Motion to
Intervene.” KL also claimed that “the record itself is clear”
24
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
that KL indeed had standing, because at the July 13, 2017
hearing, the court “already ruled that [KL] did have standing[.]”
Regarding the Order Denying Motion for Reconsideration,
KL argued that the family court erred in ruling that her
challenge in the instant case was moot due to consolidation of
the competing adoption petitions. KL argued that if she “were to
have overturned the Department’s choice, and regained custody of
AB, then under HRS § 578(2)(a)(6), her consent would be required
to any proposed adoption of AB, which in the present
circumstances would allow her to withhold consent to the New
Hampshire adoption.”
2. Answering Brief
In its Answering Brief, the Department argued KL lacked
standing to challenge (1) the Order Awarding Permanent Custody
and (2) the Order Continuing Permanent Custody, as she was
“neither a parent, nor a party to [AB]’s custody proceeding” and
was thus not “affected or prejudiced by the appealable order.”
The Department argued that while the court allowed KL to
participate in the July 13, 2017 hearing as AB’s resource
caregiver, the transcript “is clear that the family court did not
determine that [KL] had standing to contest custody.”
Moreover, the Department argued that even if KL had
standing, her appeal of the custody orders was untimely under
Rule 3 of the Rules Expediting Child Protective Appeals (RECPA),
25
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
and HRAP Rule 4.25 Citing the 30-day window to file a notice of
appeal, the Department noted that KL’s appeal was filed 277 days
after the Order Awarding Permanent Custody was ordered and 158
days after the Order Continuing Permanent Custody was ordered.
Because “[t]here is no statutory exception allowing for such late
filings,” the Department argued that the ICA should not address
the merits of these two appeals.
The Department also argued that KL’s points lack merit.
Regarding the Order Awarding Permanent Custody, the Department
contended that Finding G was harmless error pursuant to HFCR Rule
6126 because such a finding “is not a statutory requirement in an
order terminating parental rights and awarding permanent custody
to the DHS[.]”
With regard to KL’s claim that the Department conferred
a benefit by recognizing her as the hānai parent of AB, the
Department asserted that this argument was not raised at the
March 10, 2017 hearing on the termination of parental rights and,
25
Although the Department did not cite it, the statute giving
authority for HRAP Rule 4 is HRS § 641-1.
26
HFCR Rule 61 provides:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order
or in anything done or omitted by the court or by any
of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating,
modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard
any error or defect in the proceeding that does not
affect the substantial rights of the parties.
26
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
in any event, such an argument does not have a legal basis.
The Department also argued that KL “fails to
substantiate the claim that she has a de facto right to custody
of [AB] as a contracted resource parent.” The Department noted
that “[a]s a resource caregiver, [KL] had a contractual
relationship with the DHS to care for the child,” which is not
the same thing as “custody of the Child.” The Department
contended that because “[f]oster custody and permanent custody of
[AB] was with the DHS,” KL did not have de facto custody of AB
pursuant to HRS § 571-46(a)(2).
Finally, the Department argued that it was not a
manifest abuse of discretion to deny KL’s Motion for
Reconsideration, as KL did not present any new evidence, and the
matters raised in the motion had already been addressed by the
court. Moreover, the Department asserted that the court properly
deemed the motion to reconsider unnecessary once it consolidated
the competing petitions for adoption.
3. Reply Brief
In her Reply Brief, KL again asserted that the court
recognized that she had standing at the July 13, 2017 hearing.
She contended that the Department failed to support its claim
that the trial court satisfied its duty to hold a hearing and
make independent recommendations before changing AB’s placement,
and that “the Department avoided answering the question of
whether [KL] was entitled to a contested hearing before the
27
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
change of placement, when it was properly before the court.”
KL also asserted that the Motion for Reconsideration
presented newly discovered evidence, and that her efforts to
contest the change of placement in the original child protection
proceeding were not moot.
Regarding the claim that Finding G in the Order
Awarding Permanent Custody was harmless error, KL contends that
HRS § 587A-33 “does require the court to make that determination,
and the Department does not show why that section of the statute
should be ignored.”
Additionally, with regard to the Order Continuing
Permanent Custody, KL raised the new argument that in addition to
“ma[king] no finding as to whether AB’s placement with [KL]
continued to be appropriate[,]” this Order improperly “contains,
side by side, two contradictory findings[.]” KL asserted that
the court’s finding that it was in AB’s best interests to
continue the “new placement in New Hampshire with [SH and JH]”
contradicted the other finding that “[t]he present placement is
appropriate, safe, and necessary,” given that the “present
placement” was with KL.
4. ICA Summary Disposition Order
On November 30, 2018, the ICA entered its Summary
Disposition Order (SDO). The ICA held that it lacked appellate
jurisdiction over the appeal of the April 3, 2017 Order Awarding
Permanent Custody and the July 31, 2017 Order Continuing
28
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
Permanent Custody, due to untimeliness. The ICA determined that
the Order Awarding Permanent Custody was immediately appealable,
citing In re Doe, 77 Hawai i 109, 114-15, 883 P.2d 30, 35-36
(1994), and thus an appeal should have been filed within 30 days
of its entry. The ICA determined the same with regard to the
Order Continuing Permanent Custody. Because neither order had
been appealed within the 30-day window set by HRAP Rule 4
pursuant to HRS § 641-1, the ICA held that it lacked appellate
jurisdiction over them.
The ICA also determined that even if these appeals were
timely filed, KL would lack standing to bring such a challenge:
When the Order Awarding Custody was entered, KL was
not a party and had not sought to intervene in this
proceeding for termination of parental rights. KL
lacks standing to enforce the parental rights of AB’s
mother [ ] or father [ ]. In re F Children, Nos.
2882, 2883, and 1884, 2009 WL 1300933 (Haw. App. May
9, 2009) (mem. op.) at *8 (Father lacks standing to
enforce Mother’s parental rights). Mother and Father
did not appeal the termination of their parental
rights to AB. Therefore, the termination of their
parental rights is final.
With regard to the Order Denying Motion to Intervene,
the ICA rejected KL’s arguments that the Family Court erred in
not recognizing her standing at the September 7, 2017 hearing,
and that it had previously recognized her standing as a party at
the July 13, 2017 hearing. The ICA determined that the Family
Court allowed KL to speak at the July 13, 2017 hearing because
she was AB’s resource caregiver, which was consistent with HRS §
587A-14(d) (2006). The ICA noted that “[t]he Family Court made
29
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
no finding at the July 13, 2017 hearing that it was in AB’s best
interest to allow KL to participate in this termination
proceeding as a party or a person with standing to be a party.”
The ICA also determined that “contrary to KL’s argument on
appeal, KL did not and could not have orally requested to
intervene during that hearing because a motion to intervene under
HFCR Rule 24(c) must be made in writing.”
Nevertheless, the ICA agreed that KL’s Motion to
Intervene and Motion for Reconsideration should have been granted
on the basis of KL’s submission of a petition to adopt AB. The
ICA reasoned as follows:
HFCR Rule 24(a)(2) requires a family court to permit
intervention by anyone who claims an interest in the
custody or visitation of the subject minor child when
the applicant is “so situated that the disposition of
the action may as a practical matter impair or impede
the applicant’s ability to protect that interest[.]”
We conclude that, upon the post-termination submission
of a petition for adoption of a minor child, the
adoption petitioner is claiming an interest in the
custody or visitation of the child and is so situated
that the disposition of the placement issues in the
termination of parental rights action may, as a
practical matter, impair or impede the adoption
petitioner’s ability to protect that interest. It
cannot be ignored that, as a practical matter, post-termination placement decisions can impact adoption
proceedings in a variety of ways. That is not to say
that the adoption petitioner’s interest must be given
particular weight, but such petitioners should be
permitted to intervene, post-termination, to ensure
that their interests are adequately protected.
The ICA recognized that “[h]ere, if at the time the
family court denied KL’s motion to intervene, there was a pending
petition for adoption filed on behalf of KL, then the Family
30
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
Court erred in denying the motion to intervene.” The ICA noted
the same with regard to SH and JH: “the Family Court also denied
a post-termination motion to intervene filed by SH and JH. If at
the time the Family Court denied that motion, a petition for
adoption on behalf of SH and JH was pending, then the Family
Court also erred in denying that motion.”
The ICA disagreed, however, with KL’s contention that
the family court should have necessarily granted the Motion to
Intervene nunc pro tunc. The ICA noted that KL did not cite
authority for this proposition, and the ICA found none. The ICA
also held that because KL did not file a written motion to
intervene on July 13, 2017, she was not entitled to have her
status as a party be retroactive to that date.
Finally, with regard to the Order Denying the Motion
for Reconsideration, the ICA addressed KL’s argument that the
family court incorrectly considered her arguments moot upon
consolidating the two adoption petitions. Specifically, the ICA
considered KL’s argument that, if she were permitted to intervene
and then were able to “overturn[] the DHS’s choice of resource
caregiver placement” and “regain custody of AB, then KL’s consent
would have been required for any proposed adoption of AB[.]”
The ICA held that KL’s consent to adoption would not be
required under HRS § 578-2(a) even if AB were returned to her
care. The ICA cited HRS § 578-2(a):
(a) Persons required to consent to adoption. Unless
consent is not required or is dispensed with under
31
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
subsection (c) hereof, a petition to adopt a child may
be granted only if written consent to the proposed
adoption has been executed by:
(1) The mother of the child;
(2) A legal father as to whom the child is a
legitimate child;
(3) An adjudicated father whose relationship to the
child has been determined by a court;
(4) A presumed father under section 578-2(d);
(5) A concerned natural father who is not the legal,
adjudicated, or presumed father but who has
demonstrated a reasonable degree of interest, concern
or responsibility as to the welfare of a child . . .;
(6) Any person or agency having legal custody of the
child or legally empowered to consent;
(7) The court having jurisdiction of the custody of
the child, if the legal guardian or legal custodian of
the person of the child is not empowered to consent to
adoption;
(8) The child to be adopted if more than ten years of
age, unless the court in the best interest of the
child dispenses with the child’s consent.
According to the ICA, even if KL resumed foster custody
of AB, this would not constitute legal custody of AB such that
HRS § 578-2(a)(6) would apply. The ICA referred to the
definition of “legal custody” under HRS § 571-2 27 and the
27
HRS § 571-2 states:
“Legal custody” means the relationship created by the
court's decree which imposes on the custodian the
responsibility of physical possession of the minor and
the duty to protect, train, and discipline the minor
and to provide the minor with food, shelter,
education, and ordinary medical care, all subject to
residual parental rights and responsibilities and the
rights and responsibilities of any legally appointed
(continued...)
32
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
definition of “foster custody” under HRS § 587A-4. 28 The ICA
recognized that the Department was appointed “as the permanent
custodian, with the duty to provide food, clothing, shelter,
psychological care, physical care, medical care, supervision,
other necessities, and appropriate education to AB.” As such,
the ICA held, “DHS, not KL, had legal custody of AB and could
provide consent to an adoption under HRS § 578-2(a)(6).
The ICA noted that KL presented no other argument on
appeal that the family court abused its discretion in denying the
Motion for Reconsideration. Nevertheless, the ICA clarified
that, “as stated above, if a post-termination petition for
adoption filed on behalf of KL was pending, then the Family Court
erred in declining to permit KL to intervene.”
The ICA concluded as follows:
For these reasons, KL’s appeal is dismissed in part
for lack of appellate jurisdiction with respect to the
Family Court’s April 3, 2017 Order Awarding Permanent
Custody and the July 31, 2017 Order Continuing
Permanent Custody. The Family Court’s October 9, 2017
Order Denying Intervention and December 21, 2017 Order
Denying Reconsideration are vacated. Recognizing,
27
(...continued)
guardian of the person.
28
HRS § 587A-4 states:
“Foster custody” means the legal status created when
the department places a child outside of the family
home with the agreement of the legal custodian or
pursuant to court order, after the court has
determined that the child’s family is not presently
willing and able to provide the child with a safe
family home, even with the assistance of a service
plan.
33
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
however, that AB’s circumstances may have changed and
the issue of intervention in this termination
proceeding may be moot, we remand this case to the
Family Court for such further proceedings as may be
necessary.
After the SDO was entered, KL filed a Motion for
Reconsideration, which was denied.
C. Certiorari Proceedings
KL timely filed an application for certiorari, which
raises the following questions:
1. Did Petitioner’s status as Hanai mother of AB
and head of a Hawaiian Ohana confer substantive
family rights that could not be abrogated
without a due process fair hearing with an
opportunity to be heard, as was requested by
Petitioner in Family Court on July 13, 2017,
speaking as “an educated Hawaiian, a mother, a
resource caregiver, a registered nurse and the
biological parent of AB’s biological
sibling”?[29]
2. What is the minimum showing/quantum of evidence
sufficient to require a contested hearing on the
proposed change of placement pursuant to In the
Interest of A.S., 132 H. 368,
322 P.3d 263
(2014), and did Petitioner’s July 13, 2017,
request for a contested hearing meet that
standard?
3. Should this Court apply Rule 2, H.R.A.P., to
reach Petitioner’s claims of plain error in the
Order Awarding Permanent Custody entered on
April 3, 2017 and the Order Continuing Permanent
Custody entered on July 31, 2017, by which
Petitioner’s & her daughter’s family rights were
adversely affected, when Petitioner was present
at the court hearings, but was not a party and
did not receive copies of the Orders until long
after the time to file a Notice of Appeal had
lapsed?
29
The quoted language is from KL’s statement to the family court on
July 13, 2017.
34
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
4. Was the Family Court’s Finding of Fact G in the
Order Awarding Permanent Custody, that there was
“no responsible and competent substitute family
willing and able to assume the duties of
permanent custody” clearly erroneous, and if so,
was the Order Awarding Permanent Custody
invalid?
5. Was the Family Court’s Finding of Fact in the
Order Continuing Permanent Custody that “the
present placement is appropriate, safe, and
necessary” inconsistent with its change of
placement to New Hampshire in the same Order,
and if so, was the change of placement clearly
erroneous?
6. Was Petitioner entitled to have her Motion to
Intervene, which was filed on August 21, 2017,
relate back to July 13, 2017, the day that
Petitioner made her oral Motion to the Court,
when Petitioner was acting pro se, and actually
had her Motion written out and read from it to
the Court?
Oral argument was held on June 20, 2019. On June 28,
2019, this court issued an order vacating the family court’s
July 13, 2017 order changing AB’s placement to New Hampshire. We
ordered that the family court conduct a contested placement
hearing, “giving proper recognition to KL’s status as a hānai
parent, as well as AB’s best interests.” We retained concurrent
jurisdiction to enter an opinion and judgment to follow the
order.
III. STANDARDS OF REVIEW
In reviewing family court cases, we recognize the
following standards.
35
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
A. Family Court Decisions
In Fisher v. Fisher, we held:
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.
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)).
B. Findings of Fact, and Conclusions of Law
On appeal, we review the family court’s findings of
fact
under the “clearly erroneous” standard. A FOF 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 appellate court is nonetheless left with
a definite and firm conviction that a mistake has been
made. “Substantial evidence” is credible evidence
which is of sufficient quality and probative value to
enable a person of reasonable caution to support a
conclusion.
On the other hand, the family court’s COLs are
reviewed on appeal de novo, under the right/wrong
standard. COLs, consequently, are “not binding upon an
appellate court and are freely reviewable for their
correctness.
....
Moreover, the family court is given much leeway in its
examination of the reports concerning a child’s care,
custody, and welfare, and its conclusions in this
regard, if supported by the record and not clearly
erroneous, must stand on appeal.
Id. (quoting In re Doe, 95 Hawai i at 190,
20 P.3d at 623).
36
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
IV. DISCUSSION
A. Jurisdiction
This court has jurisdiction to review the October 9,
2017 Order Denying Motion to Intervene and the December 21, 2017
Order Denying Motion for Reconsideration. In substance, those
orders related back to the July 31, 2017 Order Continuing
Permanent Custody.
HRS § 587A-36, which governs appeals of family court
orders, provides: “[a]n interested party aggrieved by any order
or decree of the court under this chapter may appeal as provided
in section 571-54.” Under HRS § 571-54:
An interested party, aggrieved by any order or decree
of the court, may appeal to the intermediate appellate
court for review of questions of law and fact upon the
same terms and conditions as in other cases in the
circuit court, and review shall be governed by chapter
602, except as hereinafter provided. Where the decree
or order affects the custody of a child or minor, the
appeal shall be heard at the earliest practicable
time.
Chapter 602, in turn, gives this court jurisdiction
“[t]o hear and determine all questions of law, or of mixed law
and fact, which are properly brought before it by application for
a writ of certiorari to the intermediate appellate court or by
transfer as provided in this chapter.” HRS § 602-5(a)(1).
KL did not timely appeal the family court’s orders
granting and continuing permanent custody, entered on March 13,
2017 and July 31, 2017. The ICA dismissed the appeal in part
37
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
because of this defect.30 But KL did timely appeal the family
court’s decision on her Motion for Reconsideration of its order
denying her Motion to Intervene. 31
Because the Motion for Reconsideration raised the same
set of issues KL raised in her earlier opposition to the July 31,
2017 Order Continuing Permanent Custody, we conclude that KL
timely appealed the relevant issues from the July 31, 2017 Order.
B. KL Had A Right to Intervene in the Case Under HFCR Rule
24(a)(2)
Pursuant to HFCR Rule 24(a)(2):
Upon timely application anyone shall be permitted to
intervene in an action when the applicant claims an
interest relating to the . . . custody, visitation, or
parental rights of a minor child which is the subject
of the action and the applicant is so situated that
the disposition of the action may as a practical
matter impair or impede the applicant’s ability to
protect that interest, unless the applicant[’]s
interest is adequately represented by existing
parties.
HFCR Rule 24(a)(2) (emphasis added).
Here, KL’s statement to the family court on July 13,
2018 was sufficient to alert the court that she wished to
intervene based on her interest in the custody, visitation, or
parental rights of AB. Her interest was based on several aspects
30
The ICA stated that an untimely appeal is “a jurisdictional defect
that cannot be waived by the parties or disregarded by the court.”
31
The family court entered its order denying KL’s Motion for
Reconsideration on December 21, 2017; KL filed her notice of appeal on
January 5, 2018. Pursuant to HRAP Rule 4(a)(3), the timely filing of the
Motion for Reconsideration extended the time for appeal of the October 9, 2017
Order Denying Motion to Intervene until 30 days after the entry of the order
disposing of the Motion for Reconsideration.
38
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
of her role in AB’s life: a hānai relative currently raising AB,
the mother of AB’s half-sister, and AB’s resource caregiver, as
well as being a petitioner to adopt AB. Taken together, these
facts clearly show that KL’s interest was sufficient to allow her
to intervene under HFCR Rule 24(a)(2).
1. KL’s Motion to Intervene Did Not Need to Be in Writing
The fact that KL did not move to intervene in writing,
which the ICA found dispositive, is not relevant. First, HFCR
Rule 24 requires only an “application,” not a motion.
Consequently, HFCR Rule 10(a), which requires that all motions -
except when made during a hearing or trial - be in writing does
not apply in its plain terms. 32 Even if HFCR Rule 10(a) did
apply to applications to intervene, KL requested an opportunity
to notify the court of her interest in the proceeding during a
hearing. Consequently, even if construed as a motion, rather
than an application, this motion would be exempt from the writing
requirement under HFCR Rule 10(a).
2. The Family Court Should Have Construed KL’s Statement
as a Motion to Intervene
Although KL’s statement was not framed as an
application to intervene in the proceedings, the family court
should have construed it as such. At that time, KL was acting
pro se. It is well settled that courts should avoid construing
32
HFCR Rule 10(a) states, “All motions, except when made during a
hearing or trial, shall be in writing, shall state the grounds therefor, shall
set forth the relief or order sought, and if involving a question of law shall
be accompanied by a memorandum in support of the motion.”
39
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
pro se pleadings “technically” in a way that forecloses a path to
relief that might otherwise be available. See Waltrip v. TS
Enters., Inc., 140 Hawai i 226, 231, 389 P.3d 815, 820 (2016)
(“[P]leadings and letters in administrative proceedings are to be
construed liberally rather than technically.” (citations and
alteration omitted)); see also Ryan v. Herzog, 142 Hawai i 278,
418 P.3d 619 (2018) (“The rules do not require technical
exactness or draw refined inferences against the pleader; rather,
they require a determined effort to understand what the pleader
is attempting to set forth and to construe the pleading in his
favor.” (quoting Dupree v. Hiraga, 121 Hawai i 297, 314,
219 P.3d
1084, 1101 (2009))). It was clear from the substance of KL’s
statement that she was asking to assert her interest in the
proceeding. The family court should have recognized that and
construed KL’s statement as an application to intervene.
3. The Family Court Should Have Considered KL’s Hānai
Status as A Factor Weighing in Favor of Granting
Intervention
On appeal, the ICA correctly held that, given KL’s
pending adoption petition, she had a sufficient interest to
warrant intervention in the child welfare proceeding. However,
it erred when it did not recognize that, in addition, by virtue
of her status as the current resource caregiver, a hānai relative
presently raising AB, and the mother of AB’s half-sister, KL had
a right to intervene in the proceeding.
In the aggregate, the roles KL played in AB’s life were
40
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
sufficient to confer a right to intervene in the child welfare
case. When determining whether a person has asserted an interest
sufficient to intervene in child welfare proceedings, we hold
that the family court must consider any asserted hānai
relationships as a factor weighing in favor of intervention.
Hānai relationships are rooted in Native Hawaiian
culture:
Meaning “to feed” or “to nourish,” hānai refers to a
child who is reared, educated, and loved by someone
other than the child’s natural parents.
Traditionally, kūpuna and older siblings within the
family exercised the right to hānai. The purpose of
hānai was often to fill an emotional void for those
without children in the home or to solidify a
relationship between two families.
. . .
Traditionally, natural parents renounced all claims to
a child in “a binding agreement when the parents said
in the hearing of others, ‘Nāu ke keiki kūkae a
na au,’” meaning “I give this child, intestines,
contents and all.” Thus, the permanent quality of the
hānai relationship made it a near equivalent of legal
adoption. It is important to note, however, that the
permanency of hānai was never intended to sever the
child’s genealogical heritage.
Native Hawaiian Law: A Treatise 1140-41 (Melody Kapilialoha
MacKenzie with Susan K. Serrano, D. Kapua ala Sproat, eds., 2015)
(citations omitted).
Several statutes define and incorporate the concept of
hānai relationships into state law. The term is defined in the
Child Protective Act as:
[A]n adult, other than a blood relative, whom the
court or department has found by credible evidence to
perform or to have performed a substantial role in the
41
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
upbringing or material support of a child, as attested
to by the written or oral designation of the child or
of another person, including other relatives of the
child.
HRS § 587A-4.
Hawai i’s administrative rules governing Temporary
Assistance of Needy Families defines “relatives” to include hānai
mothers and fathers.33 HAR § 17-656.1-7(b)(1). The section
includes that “‘[h]anai’ means a child who is taken permanently
to be reared, educated, and loved by someone other than the
child’s natural parents at the time of the child’s birth or in
early childhood. The child is given outright, and the natural
parents renounce all claims to the child.” HAR § 17-656.1-2.
And in Hawai i’s Workers Compensation Law, the term “child”
includes “a hanai child acknowledged prior to the personal
injury.” HRS § 386-2. This section does not define the term
“hānai.”
This court has also recognized the legal significance
of hānai relationships. In Leong v. Takasaki, 55 Haw. 398,
520
P.2d 758 (1974), we considered whether a minor child could
recover damages for negligent infliction of emotional distress
after he witnessed his hānai grandmother killed in a car
33
Many other administrative rules also recognize hānai
relationships. See, e.g., HAR §§ 17-2030-2 (Hawai i Public Housing Authority
administrative rules defining hānai child as “a person, under nineteen years
of age, for whom an applicant provides food, nourishment, and support and who
is known among friends, relatives, and the community as the applicant’s
child”); 17-656.1-15(c)(3) (Aid to Families with Dependent Children rule that
“[t]he needs and income of hanai parents must be included in assistance units
which include a hanai child”).
42
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
accident. We found that the absence of a blood relationship did
not bar the child’s recovery, citing the strong Native Hawaiian
tradition of hānai.34 55 Haw. at 410-11,
520 P.2d at 766. Our
holding that the family court must weigh hānai relationships in
favor of granting intervention in a child welfare proceeding
recognizes the emotional bond between hānai parent and child.
This bond confers an interest on behalf of the parent in the life
of the child, even without formal adoption.
C. The Family Court Erred When it Failed to Examine the Best
Interests of the Child Before Ordering Out of State
Placement
1. DHS Has Broad Discretion to Recommend In-State
Placement of Foster Children
“[U]pon termination of parental rights, discretion to
determine an appropriate custodian is vested in DHS.” In re Doe
(December 2002 Doe), 100 Hawai i 335, 346, 60 P.3d 285, 296
(2002). One of the statutory “duties and rights” of DHS, as
permanent custodian, is “[d]etermining 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[.]” HRS
§ 587A-15(d)(2). When DHS recommends an in-state placement, we
have recognized that DHS “must necessarily be free as an agency,
with its particular expertise in child welfare, to make choices
among living arrangements[.]” In re AS, 132 Hawai i 368, 378,
34
At the same time, this court has stopped short of using the
doctrine of equitable adoption to make hānai children heirs of their hānai
parents. Maui Land & Pineapple Co. v. Naiapaakai Heirs of Makeelani, 69 Haw.
565, 568,
751 P.2d 1020, 1021-22 (1988). Our decision today follows Leong but
does not disturb the holding in Maui Land & Pineapple.
43
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
322 P.3d 263, 273 (2014).
In defining the parameters of the family court’s review
of an in-state placement decision, we found that “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.” Id. at 377. We set forth this rule
because DHS’s “social workers are presumed to be experts on child
protection and child welfare.”
Id. (citing HRS § 326-51 (1993 &
Supp. 2008), and HRS § 587A-19 (Supp. 2010)). Under this
standard, DHS’s in-state permanent placement recommendation will
be upheld unless “the party contesting DHS’s permanent placement
recommendation” establishes by a preponderance of the evidence
that the recommended placement is not in the child’s best
interests. Id.
2. The Family Court’s Best Interests of the Child
Determination Limits DHS’s Discretion Where DHS
Recommends Out-Of-State Placement
Where DHS recommends an out-of-state permanent
placement, “the child shall not be placed outside the State
without prior order of the court,” HRS § 587A-15(d)(2),
regardless of whether this placement recommendation is contested
by another party. In In re AS, we held that the family court
must make its own best interests determination in the context of
permanency hearings. 132 Hawai i at 377, 322 P.3d at 272.
Similarly, in AB’s case, the family court had an obligation in
44
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
all instances involving out-of-state permanent placement
recommendations to conduct an independent determination of the
child’s best interests.
The family court did not conduct such a determination.
At the July 13, 2017 hearing, the court accepted, without any
serious inquiry into AB’s best interests, the recommendation to
change AB’s placement to New Hampshire. 35 The extent of the
court’s inquiry is reflected in the transcript between the court,
the GAL, and Deputy Attorney General Sandra Freitas, appearing on
behalf of the Department, as follows:
THE COURT: Thank you. Good morning. Please have a
seat, everyone. So, Miss Iopa, this is a status
hearing on your motion. Where are we at?
MS. IOPA: Yes, Your Honor. I believe we have an
agreement for a change of placement and to continue
the adoption hearing.
THE COURT: Ms. Freitas?
MS. FREITAS: That is correct, Your Honor. The
Department is going to be changing the placement
of the child to [SH and JH’s] home on the mainland.
THE COURT: All right.
MS. FREITAS: She's been there.
THE COURT: And that's where she is at now?
MS. FREITAS: Things have been going well. Yes. And
the ICPC already went through approving that home. So
effective today, we're going to be having the status
changed, so that will be the resource home.
35
It is also unclear whether the family court considered this
court’s holding that “there is no relative placement preference in [HRS]
chapter 587A [] with respect to permanent placement of foster children[.]” In
re AS, 132 Hawai i at 370, 322 P.3d at 265.
45
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
THE COURT: All right.
The family court did not inquire into DHS’s abrupt
change of position in favor of SH. It did not ask the GAL what
AB’s position was with regard to her permanent placement. It did
not consider how this change of placement would impact AB’s
relationships in Hawai i, or how it would impact AB’s interests
in stability. It did not ask why possible permanent placement
options in Hawai i, including her present placement at the time,
were no longer being considered. The court simply said, “All
right” and moved on. Considering the record before the family
court at that time, and considering the family court’s statutory
obligation to review the DHS’s out-of-state placement decision,
this was an abuse of discretion.
We have recognized that “[w]here the best interests of
a child is of paramount importance, consideration of all relevant
evidence becomes a critical duty of the court in making a
decision regarding custody and visitation.” In re Doe (2006
Doe), 109 Hawai i 399, 411, 126 P.3d 1086, 1098 (2006) (citations
omitted). As such, we held that the family court abused its
discretion when it denied appellants “the opportunity to present
evidence to show that visitation was in the best interest of the
children,” and we ordered that the appellants be provided this
opportunity on remand. Id.
KL likewise was wrongfully denied the opportunity to
present evidence to the family court regarding AB’s placement.
46
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
The court allowed KL’s statement at the July 2017 hearing, not
because of her interests in AB’s custody, but because of her
statutory right, as the current resource caregiver, to
“participate in the proceedings to provide information to the
court . . . concerning the current status of the child in [her]
care.” See HRS § 587A-14. The opportunity to read a statement
aloud does not satisfy the 2006 Doe requirement. Rather, KL
should have been able to participate as a party and thereby
present evidence and otherwise develop an adequate factual record
for the court’s consideration.
Moreover, there is no indication that the family court
considered KL’s statement when issuing its decision. Aside from
stating, “Thanks for that input,” the court did not address KL’s
assertions, acknowledge the dispute regarding whether AB’s
proposed out-of-state placement was in her best interests, or
even state a finding that such a change was in AB’s best
interests.
3. The Family Court Should Have Considered AB’s Hānai
Relationship with KL When it Determined AB’s Best
Interests
HRS § 571-46(b) sets forth the factors involved in a
best interests of the child analysis in the context of child
custody and visitation determinations in divorce proceedings.
Among these are “[t]he emotional needs of the child,” “[t]he
child’s need for relationships with siblings,” and “[t]he overall
quality of the parent-child relationship.” In addition, “[o]ther
47
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
factors for consideration may include the child’s own desires and
his [or her] emotional and physical needs.” In re Doe, 95
Hawai i at 191, 20 P.3d at 624 (quoting Woodruff v. Keale,
64
Haw. 85, 99-100,
637 P.2d 760, 769-70 (1981)). Hānai
relationships fit within these categories that the family court
must consider in determining a child’s best interests.
Given the significance of the hānai relationship in our
statutes, prior case law, and Native Hawaiian history, as stated
above, such relationships are an essential part of the best
interests of the child determination. Consequently, we hold that
family courts must consider these relationships whenever the
statute requires that the court determine the best interests of a
child. Because the family court did not consider AB’s hānai
relationships, including her relationship with KL, it abused its
discretion in changing AB’s placement to New Hampshire. 36
Because we find that KL was entitled to intervene in
the proceedings under HFCR Rule 24(a) and that the family court
inadequately considered AB’s best interests in changing her
placement on July 13, 2017, we need not reach the constitutional
question posed in KL’s first point of error on certiorari. In
addition, we do not determine here whether the family court erred
in its Findings of Fact on March 13, 2017 - this question is moot
because the family court must now make new findings of AB’s best
36
It also does not appear that the family court took into account
HRS § 571-46(b)(10)’s mandate to consider AB’s “need for [a] relationship with
her sibling[],” TL, who also resided with KL while AB was in KL’s home.
48
… FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER …
interests with KL as a party to the proceeding. 37
V. CONCLUSION
For the reasons set forth above, and consistent with
our June 28, 2019 Order, we vacate the January 31, 2019 judgment
of the ICA and the July 31, 2017 order of the family court and
remand for further proceedings consistent with this opinion.
Peter L. Steinberg /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Ian T. Tsuda, Julio C.
Herrera, Kurt J. Shimamoto, /s/ Sabrina S. McKenna
and Patrick A. Pascual
(Sandra L.S. Freitas /s/ Richard W. Pollack
and Julio C. Herrera
on the brief) /s/ Michael D. Wilson
for respondent
37
We also need not decide whether KL qualified as a person with “de
facto custody” of AB pursuant to HRS § 571-46(a)(2). Should the family court
determine that KL had de facto custody of AB, that status may confer
additional rights in the pending adoption proceeding.
49
