… FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER …
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
27-DEC-2022
09:06 AM
Dkt. 14 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
IN THE INTEREST OF ASK
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-S NO. 18-00112, FC-S NO. 18-00241,
FC-A NO. 20-1-6137, FC-A NO. 21-1-6005)
DECEMBER 27, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY EDDINS, J.
I.
The family court has to consider sixteen factors to guide
its best interests of the child finding in parental custody and
visitation cases. See Hawai‘i Revised Statutes (HRS) § 571-46(b)
(2018). But there are no statutory factors to guide a family
court’s “best interests of the individual” finding in adoption
and permanent placement cases. See HRS § 578-8 (2018 & Supp.
2019).
So what’s a family court to do when faced with competing
petitions for adoption of three young siblings?
In petitions for adoption and permanent placement, we hold
that a family court is free to consider any admissible evidence
that addresses its dispositive fact of consequence, the best
interests of the individual. This may include evidence
supporting some best interests factors listed in HRS § 571-
46(b). And it may include much more. Only the rules of
evidence confine the family court as it finds, weighs, and
values facts to reach its best interests determination.
Because the Family Court of the First Circuit properly
assessed the relevant evidence to support its best interests of
the individual determination, we affirm its orders.
II.
In 2018, the Department of Human Services (DHS) received
reports of parental neglect involving two siblings, three-year
old and seven-month old sisters. DHS assumed temporary foster
custody of the Children under the Child Protective Act (CPA).
It placed the Children with a DHS-vetted family, the Resource
Caregivers (RCGs). Months later a brother was born; DHS took
custody and placed the newborn with his sisters in RCGs’ home.
2
The Children’s mother died in 2019 while CPA proceedings
were ongoing. DHS then moved to terminate Father’s parental
rights. Father stipulated to the termination of his parental
rights in July 2020.
Once parental rights terminate, DHS assumes legal custody
and must find the child a suitable permanent home. In re Doe,
100 Hawai‘i 335, 346 n.19, 60 P.3d 285, 296 n.19 (2002). DHS
also has to consent to the proposed adoption of a child in its
custody under HRS § 578-2(6) (2018), though its placement
decision is subject to the family court’s independent best
interests determination. See In re AS, 132 Hawai‘i 368, 378,
322
P.3d 263, 273 (2014).
In 2020, the Children’s paternal Aunt and Uncle (Relatives)
from California successfully moved to intervene in the CPA’s
permanent placement and adoption proceedings.
DHS filed a petition on RCGs’ behalf to adopt the Children.
DHS recommended permanent placement with RCGs in October 2020.
In January 2021, Relatives filed their own petition to adopt the
Children. DHS opposed the petition and filed a Notice of the
Department of Human Services’ Withholding of Consent to
[Relatives’] Adoption Petition.
The family court consolidated the dual adoption cases. It
held a four-day trial on the Children’s adoption and permanent
3
placement. 1 When trial started, the sisters had lived with RCGs
for about two years and seven months, and their younger brother
had lived with RCGs for two years and two months.
The family court found that adoption by the RCGs was in
each child’s best interests and confirmed DHS’s placement
decision. The court checklisted HRS § 571-46(b). It marched
through all sixteen factors, recognized most did not apply, and
considered other factors including finances and kinship. It
decided on balance that the pertinent evidence favored RCGs.
The court granted DHS’s petition for adoption by Resource
Caregivers. And it denied the petition for adoption by the
Children’s paternal Aunt and Uncle.
Relatives appealed. They challenge the court’s use of HRS
§ 571-46(b)’s factors, and claim the family court failed to
adequately consider best interests factors in their favor, like
“blood” and money. They also say the court applied an incorrect
legal standard and failed to independently review DHS’s
placement recommendation.
The Intermediate Court of Appeals affirmed the family
court’s orders. Now Relatives repeat their arguments and urge
“this court [to] clarify what factors are to be applied by the
1 The Honorable John C. Bryant, Jr. presided.
4
trial courts to determine best interests in permanent placement
proceedings and adoption proceedings.”
III.
Contrary to Relatives’ assertions, a family court does not
necessarily err when it relies on HRS § 571-46(b)’s mandatory
custody and visitation factors to guide a best interests
determination in adoption and permanent placement proceedings.
But Relatives make a cogent point that the factors are mostly
ill-suited to an adoption and permanent placement case.
Because most of the custody and visitation factors focus on
parents – their history, characteristics, and quality of
relationship with their child – once parental rights terminate,
those factors recede. HRS § 571-46 is titled “Criteria and
procedure in awarding custody and visitation.” (Emphasis
added.) HRS § 571-46(b) lists the factors 2 that family courts
2 Under HRS § 571-46(b):
In determining what constitutes the best interest of the
child under this section, the court shall consider, but not
be limited to, the following:
(1) Any history of sexual or physical abuse of a
child by a parent;
(2) Any history of neglect or emotional abuse of a
child by a parent;
(3) The overall quality of the parent-child
relationship;
(4) The history of caregiving or parenting by each
parent prior and subsequent to a marital or other
type of separation;
5
“shall consider” to determine whether a parent is awarded
custody or visitation of a child. Only five of the sixteen
factors directly link to “the needs of the child.” See HRS
§§ 571-46(b)(6) - (10). So in post-parental termination cases,
there is no reason to require family courts to do what the court
did here - evaluate each custody and visitation factor. See In
(5) Each parent’s cooperation in developing and
implementing a plan to meet the child’s ongoing
needs, interests, and schedule; provided that this
factor shall not be considered in any case where the
court has determined that family violence has been
committed by a parent;
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
(10) The child’s need for relationships with
siblings;
(11) Each parent’s actions demonstrating that they
allow the child to maintain family connections
through family events and activities; . . .
(12) Each parent’s actions demonstrating that they
separate the child’s needs from the parent’s needs;
(13) Any evidence of past or current drug or alcohol
abuse by a parent;
(14) The mental health of each parent;
(15) The areas and levels of conflict present within
the family; and
(16) A parent’s prior wilful [sic] misuse of the
protection from abuse process under chapter 586 to
gain a tactical advantage in any proceeding involving
the custody determination of a minor. . . .
(Emphases added.)
6
the Interest of Hannah L., 390 P.3d 1153, 1159 (Alaska 2017)
(rejecting petitioner’s argument that family courts must base
adoption best interests determinations on the factors required
in child custody cases).
Further distancing the parental custody factors from
adoption and permanent placement, HRS § 578-8 concerns the
adoption of an individual. It requires that an “adoption will
be for the best interests of the individual.” 3 Individuals come
in all ages. And have varied needs. So HRS § 571-46(b)’s best
interests of a child factors do not neatly migrate to HRS § 578-
8’s best interests of an individual determination.
Relatives believe the family court’s reliance on HRS § 571-
46(b) meant the court placed “unreasonable weight” on the
Children’s attachment to RCGs, while undervaluing other factors.
They argue that the mandatory parental custody factors should
3 HRS § 578-8(a) reads:
After considering the petition and any evidence as the
petitioners and any other properly interested person may
wish to present, the court may enter a decree of adoption
if it is satisfied that:
(1) The individual is adoptable under sections 578-1
and 578-2;
(2) The individual is physically, mentally, and
otherwise suitable for adoption by the petitioners;
(3) The petitioners are fit and proper persons and
financially able to give the individual a proper home
and education, if the individual is a child; and
(4) The adoption will be for the best interests of
the individual.
7
not be given presumptive weight in adoption and permanent
placement proceedings.
True, there is no statutory provision that gives some
evidence superior probative value over other evidence in
adoption and permanent placement cases. But here the family
court did not automatically boost the value of attachment
evidence, or any evidence. The court merely attached probative
value to that evidence. It did not treat attachment as a
statutory super-factor or give that evidence preferential
treatment. Rather, it weighed the attachment evidence alongside
the other evidence and found it valuable.
Under the circumstances of the case, the family court
viewed the attachment evidence as compelling. The court
believed that removing the Children from RCGs’ home would not
serve their best interests. It explained that the Children
identify RCGs as their parents, and the RCGs’ home as their
home. The court stressed the importance of stability in the
Children’s lives. It also valued the oldest child’s distinct
needs as the only sibling who remembered being neglected and
abused. 4
Relatives’ claim that the family court disregarded relevant
evidence is misplaced. They argue that the court focused only
4 The court found the child’s removal from RCGs’ home, “even with
prophylactic measures, is not a justifiable risk to [her] emotional health.”
8
on the HRS § 571-46(b) factors. Thus, it ignored, or at least
undervalued, evidence about their financial status and blood
relationship to the Children. The court, however, factored the
finances of both prospective adoptive families. It also
considered evidence of Relatives’ kinship to the Children. This
evidence, though, did not alter the court’s best interests
determination.
IV.
Since HRS § 578-8 has no best interests factors and HRS
§ 571-46(b)’s best interests factors do not entirely align with
the court’s key inquiry, how does a family court become
“satisfied . . . [t]he adoption will be for the best interests
of the individual”?
It values the evidence. Like in any trial.
In petitions for adoption and permanent placement, a
family court should consider all admissible evidence to
determine the best interests of the individual. This may
include evidence supporting a pertinent best interests factor
listed in HRS § 571-46(b). And it may include other relevant
evidence. 5 Only the rules of evidence confine the family court.
5 We stress that HRS § 571-46(b)’s factors may be relevant in adoption
and permanent placement cases. For instance, courts must consider admissible
evidence about a prospective adoptive parent’s: “history of sexual or
physical abuse of a child,” HRS § 571-46(b)(1); “history of neglect or
emotional abuse of a child,” HRS § 571-46(b)(2); “past or current drug or
alcohol abuse,” HRS § 571-46(b)(13); and “mental health,” HRS § 571-
46(b)(14).
9
We also hold that within this typical trial framework, there are
no statutory presumptions, no “super-factors,” and no evidence
that deserves automatic preferential treatment.
Our view reflects a central feature of any trial: the fact-
finder – judge or jury - finds facts, weighs and values those
facts, and finds other facts, the facts of consequence. The
dispositive fact of consequence in adoption and permanent
placement trials is what outcome serves the individual’s best
interests. Our approach squares with HRS § 578-8, which
instructs family courts to consider “any evidence as the
petitioners and any other properly interested person may wish to
present.” (Emphasis added.) This law’s panoramic outlook suits
the family court’s broad discretion in best interests
determinations. It allows the court to find and weigh any fact
- under case-specific circumstances - that is helpful to its
best interests determination. See, e.g., Matter of Adoption of
ZEM, 458 P.3d 21, 25 (Wyo. 2020) (“A court may consider numerous
factors when determining whether an adoption is in the child’s
best interests. . . . No single factor is determinative and
depending on the case, different factors will present a greater
need for emphasis. The one constant is that the resolution must
be in the best interests of the children in that particular
family.” (cleaned up)); 2 Am. Jur. 2d Adoption § 131 (Nov. 2022
Update) (“[A] judge may consider a wide range of permissible
10
evidence in determining which placement will serve the child’s
best interests, and it is for the trial judge to determine the
weight of the evidence.”).
V.
We turn to whether the family court independently reviewed
DHS’s placement recommendation and properly found that the
Children’s adoption by RCGs was in their best interests.
Relatives maintain that the court rubber-stamped DHS’s
permanent placement recommendation. They say the court did not
make an independent determination of the Children’s best
interests. See In re AS, 132 Hawai‘i at 378, 322 P.3d at 273
(holding DHS’s placement decisions remain subject to the family
court’s “independent best interests review”). The record belies
Relatives’ claim.
The court did not uncritically accept DHS’s placement
decision. Rather, the family court meaningfully assessed the
admissible evidence to determine which adoption served the
Children’s best interests. In a 46-page order, the court made
over 200 findings of fact and 43 conclusions of law. There was
no rubber-stamp.
The family court’s review contrasts with the court’s
actions in In re AB, 145 Hawai‘i 498, 517–18, 454 P.3d 439, 458–
59 (2019). There the court did not independently determine that
DHS’s out-of-state permanent placement decision served a child’s
11
best interests. The court “simply said, ‘All right’ and moved
on” without considering alternatives to out-of-state placement
or the decision’s impacts on the child’s relationships and
stability in Hawai‘i. Id.
Here, we conclude that the family court properly considered
the admissible evidence and found that adoption and permanent
placement with RCGs served the Children’s best interests. The
court did not abuse its discretion. See Fisher v. Fisher, 111
Hawai‘i 41, 46, 137 P.3d 355, 360 (2006) (holding that “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”).
VI.
We affirm the ICA’s Judgment on Appeal and the Family Court
of the First Circuit’s April 6, 2021 Order affirming DHS’s
permanent placement of the Children with RCGs and denying
Relatives’ adoption petition.
Francis T. O’Brien /s/ Mark E. Recktenwald
(Brett A. Ritter on the briefs)
/s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Patrick A. Pascual and
/s/ Michael D. Wilson
Julio C. Herrera
(Ian T. Tsuda and Regina Anne /s/ Todd W. Eddins
Mormad Shimada on the briefs)
for respondent
12
