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In re of As

Intermediate Court of Appeals of Hawaii

March 28, 2013



Patrick A. Pascual Mary Anne Magnier Jay K. Goss Deputy Attorneys General for Petitioner-Appellant Department of Human Services.

Francis T. O'Brien for Respondent-Appellee for Foster Parents.

Kimberly S. Towler for Respondent-Appellee Volunteer Guardians Ad Litem Program.




The Department of Human Services (DHS) appeals from the "Order Re: Trial on Placement" (Placement Order) entered on November 18, 2011, in the Family Court of the First Circuit[1](family court). The Placement Order provides the following, in relevant part:

1. DHS shall maintain [AS's] placement in [her foster parents' (Foster Parents') home (Foster Home)].
2. [AS] shall not be removed from [Foster Home] except if there is imminent harm.
3. DHS shall continue to provide visitation with [AS's maternal aunt (Maternal Aunt)] and with [AS's] biological family on Oahu and her half-siblings [(collectively, Maternal Relatives)], in consultation with the [Volunteer Guardian Ad Litem] Program.
4. DHS's oral motion to be relieved as [AS's] permanent custodian made after the [family court] announced its decision is denied.
5. All prior consistent orders remain in full force and effect.

On appeal, DHS argues that the family court abused its discretion when it ordered DHS not to place AS with Maternal Aunt or remove AS from Foster Home. DHS maintains that the court:

(1) erred as a matter of law when it failed to follow and apply Hawai'i and federal child protective laws that create a preference for placing children in state foster care with their families, if appropriate, in accordance with "the liberty interest of familial association" protected by the Fourteenth Amendment of the U.S. Constitution, and instead focused on DHS's application of its 2005 family placement preference policy;

(2) erred as a matter of law by applying a contradictory and unlawful standard of proof that first required DHS to prove that its proposed placement with Maternal Aunt was in AS's best interest, and then, if DHS did not do so, required the parties opposing DHS's recommendation to prove DHS abused its discretion in making its proposed placment;

(3) erred as a matter of law by failing to consider how various orders it issued delayed commencement of the permanency trial, which negatively impacted DHS's efforts to place AS with Maternal Aunt;

(4) clearly erred in finding that DHS abused its discretion by deciding to place AS with Maternal Aunt; and

(5) erred as a matter of law by denying DHS's request to be discharged as AS's permanent custodian, after ordering DHS not to place AS with Maternal Aunt.


A. Pre-trial

1. Foster Family and Home

AS was drug-exposed in utero, and weighed five pounds, 10.9 ounces when she was born in 2008. On July 24, 2008, pursuant to her biological mother (Mother) and father's (Father's) voluntary custody agreement, she was taken into foster custody. The same day, DHS placed her with Foster Parents.

Foster Parents are not biologically related to AS. At the time of the placement trial, in October 2011, the foster mother (Foster Mother) had been a foster parent/resource caregiver to approximately twenty-four children, mostly babies, since 2005. In 2008, she adopted a foster daughter, who was eight years old by the time of trial. Also in 2008, DHS approved Foster Home, located on O'ahu, as an emergency shelter.

Foster Mother had a biological daughter who lived at Foster Home when AS was placed there.[2] Foster Mother also had an adult biological son, who lived on the Mainland at all relevant times. Foster Mother owned her own business. In 2009, she married AS's foster father (Foster Father), who was a handyman and had two children from a prior relationship.

Maternal Aunt lived on Maui and worked as a special education teacher. She was divorced in 2009. Her five-year-old daughter lived with her. Maternal Aunt had been a foster mother to her nephews from 2003 to 2007.

2. Petition for Foster Custody

On August 7, 2008, DHS filed a Petition for Foster Custody. In August 2008, AS's case was assigned to social worker Judith Tarpley (Tarpley).

On August 28, 2008, DHS removed AS from Foster Home and placed her in the home of family friends (Family Friends) who had previously fostered one of AS's half-siblings.

On September 25, 2008, DHS convened an Ohana Conference attended by Mother, Father, a maternal uncle, two maternal aunts, Foster Parents, and Tarpley, but not Maternal Aunt.

On February 3, 2009, DHS removed AS from the home of Family Friends at their request and returned AS to Foster Parents. AS remained with Foster Parents continuously from that time on.

3. Motion for Permanent Custody

In June 2009, Tarpley asked Foster Parents if they were interested in adopting AS, and they said that they were. On June 29, 2009, DHS filed a Motion for Order Awarding Permanent Custody and Establishing A Permanent Plan (Motion for Permanent Custody). DHS submitted a proposed permanent plan, in which DHS recommended that the court award it permanent custody of AS, whom Foster Parents wanted to adopt.

In October 2009, Maternal Aunt applied to be AS's foster parent, [3] and DHS approved her for placement. At a pretrial hearing on October 28, 2009, counsel for DHS stated that although DHS had determined that Maternal Aunt was a possible viable placement option, DHS wanted to give Father more time to reunify with AS before placing her with Maternal Aunt. The family court granted the request.

Mother stipulated to the termination of her parental rights, and after a trial on DHS's Motion for Permanent Custody, Father's parental rights were terminated.[4]

On April 8, 2010, DHS filed a Motion for Immediate Review to Move Child to Maui, in which it recommended placement of AS with Maternal Aunt because "DHS strives to place children with relatives." On April 16, 2010, the Volunteer Guardian Ad Litem (VGAL), Michelle Dean (Dean), filed a Motion to Retain Placement, in which she moved the family court to keep AS in Foster Home on the ground that removal could disrupt AS's primary attachment development process. At a hearing on the motions, the court denied DHS's motion without prejudice and granted Dean's motion.

In a report dated July 22, 2010, Department of Health, Early Intervention Section clinical psychologist Dr. Jennifer Takahashi (Takahashi) reported that AS was referred to her for consultation, even though AS did not qualify for developmental services, because there were concerns about her behavior following her visit with a maternal uncle. AS's behavior had improved, and she seemed happy and secure. Dr. Takahashi made recommendations regarding AS's future contact with and possible transition to the home of Maternal Aunt, and continued to observe AS and report on her observations for some time thereafter.

4. Foster Home Certification and Maternal Aunt's Motion to Intervene

The family court set a placement trial for October 4, 2010. Prior to trial, DHS advised the court that it would be revoking Foster Parents' certification pursuant to the Hawai'i Administrative Rules (HAR) § 17-1625-17(d) (1) (A)[5] because Foster Father had a 1990 conviction for robbery. The court continued the trial due to the licensing issue.[6]

On October 13, 2010, Foster Parents filed a motion for an order requiring DHS to certify their home and for a placement trial (Motion to License Home and for Trial).

Also on October 13, 2010, Foster Parents filed an Ex Parte Motion for Restraining Order (Motion for Restraining Order), in which they sought to prevent DHS from revoking their certification and removing AS from their home without evidence that she was in danger of imminent harm. They asked to keep AS until the family court held a hearing on their Motion to License Home and for Trial. In an order dated October 13, 2010, the court granted the Motion for Restraining Order.

On October 18, 2010, the family court held a hearing on the Motion to License Home and for Trial where they orally granted the motion and stayed de-certification of Foster Home until further order. The court set the trial for December 15, 2010.

On December 15, 2010, the family court conducted a hearing on the Motion to License Home and for Trial. The court held that robbery, which was a crime against property, was not a crime of violence within the context of HAR § 17-1625-17(d)(1)(A). The court set aside trial for that day and ordered DHS to keep AS in Foster Home and not revoke Foster Parents' license until a hearing to be held on January 12, 2011. The same day, the family court filed an order reflecting its oral rulings. On December 22, 2010, DHS filed a motion for reconsideration of the order.

On December 30, 2010, the family court filed an order granting the Motion to License Home and for Trial. The court stayed DHS's revocation of Foster Parents' certification until further order, ruled that AS would remain with Foster Parents, and rescheduled the placement trial.

On January 12, 2011, the family court heard DHS's motion for reconsideration of the December 15, 2010 order rejecting DHS's argument that robbery was a crime of violence pursuant to HAR § 17-1625-17(d)(1)(A). The family court filed an order denying the motion.

On or about April 29, 2011, DHS sent Foster Parents a letter (Certification Letter), stating that DHS had allowed the foster home certification to lapse on April 4, 2011 and could not renew it because of the robbery conviction. On May 18, 2011, Foster Parents filed a Motion for Immediate Review, in which they asked the family court to order DHS to rescind its Certification Letter.

On May 31, 2011, Maternal Aunt moved to intervene in the case. On June 15, 2011, the family court filed an order granting the motion.

On June 27, 2011, the family court filed an order in which it granted Foster Parents' Motion for Immediate Review and ordered DHS to "keep the foster home license in effect through the conclusion of the placement trial . . . ."

DHS later conceded that its position regarding decertification had been incorrect, and issued Foster Parents an unconditional foster home certification retroactive to April 2011.

5. Standard of Proof

On September 15, 2011, DHS filed a trial memorandum regarding the standard of proof to be applied at trial. DHS argued that although the family court had broad statutory authority to enter orders that were in the "best interests of the child, " that authority was limited by legal and constitutional requirements. Given those parameters, DHS asserted, the following standard of proof applied: the party challenging a DHS determination regarding a child's permanent placement must prove that DHS abused its discretion in determining that the recommendation was in the child's best interests. DHS cited to In re Doe, 100 Hawai'i 335, 346 n.19, 60 P.3d 285, 296 n.19 (2002)[7]; In re Doe, 7 Haw.App. 547, 784 P.2d 873 (1989) (1989 Doe); In re Doe, 101 Hawai'i 220, 231, 65 P.3d 167, 178 (2003) (March 2 0 03 Doe)[8]; and In re Doe, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23 (2001) (2001 Doe), [9]

On September 15, 2011, Foster Parents filed a trial brief in which they argued:

If the preponderance of the evidence indicates that [AS's] best interests will be served by remaining with Foster Parents[, ] that should be the ruling of the Court.
If the Court finds by a preponderance of the evidence that it is [AS's] best interest to remain with Foster Parents, that decision amounts to a finding that the position of the DHS constitutes an abuse of discretion. Were this not the case then the absurd result would be that the Court would be prevented from taking action that it has found to be in the best interests of a child because the DHS has the discretion to make decisions that are not in the best interests of the child. Such a result would not be in keeping with the policy of the Child Protective Act [(CPA)].[10] The DHS asks the Court to focus upon its power and authority; Foster Parents ask the Court to focus upon [AS's] best interests. In construing the acts of the legislature the courts are to seek a construction that does not create an absurd result. Flores v. Rawlings Co., LLC, 117 Haw. 153, 164, 177 P.3d 341, 352 (2008). It is clear from the language of Chapter 587A that the Court is vested with the final say over what outcome is in the best interests of a child. The language that has been quoted by the DHS is the standard by which the Court's findings will be reviewed on appeal. In making its argument, the DHS is telling the Court that the best interests of the child should be subordinated to the interest of the DHS in doing whatever it wants. The policy of the [CPA] states:
This chapter shall be liberally construed to serve the best interests of the children affected and the purpose and policies set forth herein.
HRS §587A-2. Any DHS' [sic] position that is determined not to be in [AS's] best interests is an abuse of the discretion that has been vested in the Department by the legislature.

Foster Parents maintained that keeping AS with them was in her best interest.

B. Trial

1. Standard of Review

The placement trial was held on October 3, 5, and 6, 2011. The main issue at trial was whether AS should continue living at Foster Home, as Foster Parents and Dean argued, or be moved to Maternal Aunt's home, as DHS and Maternal Aunt argued.

At the beginning of trial, the family court heard arguments regarding the relevant standards of review. Counsel for DHS maintained that the court should apply an abuse-of-discretion standard; if the family court found DHS clearly erred in finding that placing AS with Maternal Aunt was in AS's best interest, the family court should conclude that DHS's placement decision was an abuse of discretion. Counsel for Maternal Aunt argued that Foster Parents and Dean had the burden to prove that DHS abused its discretion in making its placement decision.

Counsel for Foster Parents argued that the family court had the authority to determine what was in AS's best interest, regardless of whether the evidence showed DHS abused its discretion in making its placement decision. Counsel contended, "[I]f the Court finds that it's in [AS's] best interest to . . . remain with [Foster Parents] . . . that should be the decision and that is in and of itself a finding that [DHS] has abused its discretion." Counsel distinguished the circumstances in this case from those in 1989 Doe by arguing that this court's ruling in that case was appropriate in 1989, when the "best-interest" standard was still developing.

Counsel for the VGAL program agreed with Foster Parents and argued that the applicable statute was HRS § 587A-33(b)(5) (Supp. 2010).[11] Counsel stated that the VGAL Program's position had not changed since it filed its Trial Memorandum on September 28, 2010. There, citing to March 2003 Doe, the VGAL Program argued that "DHS's discretion in placement is always subject to judicial review. If this Court decides adoption by [Foster Parents] is in [AS's] best interests, it per se finds that DHS abused its discretion in selecting [Maternal Aunt's] home."

The family court made its ruling regarding the standard of review:

THE COURT: Let me tell you what I've concluded with respect to what the — the relevant standards are for the Court to apply in this case. ... I believe that the standard of review would be best interest. . . . And although I think the — in every case, whoever is making the decision as to placement of a child or who should have custody of a child, that the best interest . . . is the only consideration. But I have to take into account what the statutory scheme is and what the still good law controlling case law is from our appellate courts. And 587A-15(d)(2) [(Supp. 2010) ] [12] gives [DHS] the authority to make placement decisions as to a child. However, . . . that decision is reviewable .
And under [1989 Doe, 7 Haw.App. at 558-59, ] the Court makes clear that the Family Court reviews [DHS's] placement decisions under the clearly erroneous standard. And — and therefore, I will apply that standard in this case.
But the — just so we're — everybody has got full notice of what I believe the relevant standards are, the placement decision is an ultimate fact that [DHS] has made its own determination of or assessment of. In reviewing that decision for this trial, the Court will review that finding under the clearly erroneous standard. And the burden of proof, therefore, would be on the parties that disagree with [DHS's] determination. And the relevant evidentiary standard would be preponderance of the evidence.
But clearly erroneous could be established in one of two ways. One is that there lacks substantial evidence to support [DHS's] decision or despite substantial evidence, the review in [sic] court is left with the definite and firm conviction that a mistake has been made. And I think that -- standard, those relevant considerations require the Court to determine on its own whether the placement — what the best interests of [AS] in this case are and then in light of that to apply the established standards for review and decisions under the clearly erroneous standard. That would require the Court then to determine whether that decision [DHS] made . . . lacks substantial evidence or whether despite there being substantial evidence a mistake has been made in [DHS's] assessment of what is in [AS's] best interest. Okay?

2. Testimony

Dina Koyanaqi's (Koyanaqi's) testimony

Koyanagi testified that in January 2010, she was the case management social worker assigned to AS's case. Annabell Togle-Wilson (Togle-Wilson) was the case worker before Koyanagi, and Tarpley was the case worker before Togle-Wilson. In reviewing the case history and records, Koyanagi found out that Maternal Aunt had a "courtesy child specific license." Koyanagi asked about possibly placing AS with Maternal Aunt and was told that a court order prevented DHS from placing AS at that time.

Maternal Aunt was not initially considered as a foster parent for AS. Maternal Aunt did not attend an August 2008 Ohana Conference, but it may have been because she was not contacted. In February 2009, Maternal Aunt first contacted DHS regarding the possibility of caring for AS. She said she would not be available until that summer, when she had earned her Master's degree. Despite what Maternal Aunt told Koyanagi, in an April 8, 2009 licensing log of contacts, Tarpley stated she was filing for permanency as no family members had expressed interest in caring for AS. According to a May 2009 permanent plan, Maternal Aunt was not interested in being considered as a resource parent.

In the Fall of 2009, AS may have had telephone contact with Maternal Aunt. Maternal Aunt visited AS when she was in town.

In October 2009, DHS issued to Maternal Aunt a "child specific license" for the purpose of moving AS to her home in November. For some reason, AS was not placed with Maternal Aunt.

On October 28, 2009, the family court ordered DHS to make its best or reasonable efforts to increase AS's visits with Father. In researching the case, Koyanagi assumed the court order prevented DHS from placing AS with Maternal Aunt because Maternal Aunt lived off-island, making it nearly impossible to increase visits with Father.

Perhaps in February 2010, Foster Mother reported to Koyanagi that Tarpley told Foster Mother that DHS had ruled out family members for possible placement with AS. Tarpley asked Foster Mother if she was interested in adopting AS. DHS decided to move AS on or around April 16, 2010, to Maternal Aunt's home.

In 2004-2005, then-director of DHS, Lillian Roller, publicly pronounced that DHS had a policy of placing children with relatives. DHS did not blindly adhere to a policy of placing foster children with relatives but believed that such placements were better for children. Koyanagi personally thought it was best in the long-run for children to have family connections. DHS preferred to place AS with Maternal Aunt because she was a relative and would provide AS with access to her extended family.

In June 2010, DHS transferred AS's case to its permanency unit. In July 2011, Koyanagi took over as supervisor of the permanency unit at DHS. From June 2010 to July 2011, AS continued to have contact and visits with Maternal Aunt. AS made transitional visits to Maternal Aunt's home, under the auspices of Dr. Takahashi. The visits helped AS's transition because they were planned out and consistent.

AS spent two continuous years with Foster Parents, since February 2009, and no more than a month or two total with Maternal Aunt. AS considered Foster Parents her parents and had bonded with their other daughters (collectively, Foster Sisters). AS's relationship with Foster Parents was stronger than her relationship with Maternal Aunt; however, a child who had formed an attachment and bond with parents could later attach and bond with a new parent.

Koyanagi believed that a child's contact with relatives was important because it could provide information about the child's family history, roots, heritage, and culture; however, Koyanagi could cite to no definitive study showing that children adopted by relatives do better than children adopted by non-relatives .

Koyanagi testified that DHS considers whether a potential foster parent has a history of childhood abuse and emotional neglect, which bears on their parenting abilities. If a potential foster parent has unresolved issues, it could impact their ability to care for a child. Koyanagi did not know if Maternal Aunt had suffered any childhood abuse or neglect, despite Maternal Aunt's statement in a DHS questionnaire that she suffered physical neglect and abuse, sexual and emotional abuse, and major emotional neglect as a child. Koyanagi testified that Foster Father's childhood sexual abuse would also be a concern for DHS.

Nothing regarding the Foster Home or changes in AS's needs made her removal to Maternal Aunt's home necessary. If it were not for AS and Maternal Aunt's blood relationship, there would be no reason for DHS to recommend placing AS with Maternal Aunt.

DHS's position was that AS should maintain contact with Foster Parents if she were adopted by Maternal Aunt, and vice-versa. However, because Foster Parents and Maternal Aunt's relationship had deteriorated, Koyanagi was no longer sure that Maternal Aunt would encourage and foster AS's contact with Foster Parents.

Julie Tsutsui's (Tsutsui's) testimony

Tsutsui, a DHS social worker assigned to the Central Permanency Unit, testified she was assigned to AS's case in July 2011. Koyanagi was her supervisor.

Tsutsui prepared a supplemental report dated September 12, 2011, which included the basis for DHS's recommendation, beginning in October 2009, that AS be placed with Maternal Aunt. On direct examination, Tsutsui testified that the recommendation was based mainly on Maternal Aunt's status as a relative, but also on the bond between her and AS, her willingness to accommodate AS, and the opportunity she would provide for AS to continue her relationship with her extended family and learn about her family background. On cross-examination, Tsutsui stated that it was DHS's policy to favor relative placements that distinguished Maternal Aunt's home from Foster Home. The decision to place AS with Maternal Aunt was made before Tsutsui ever became involved in the case.

Tsutsui had observed AS's interactions with Maternal Aunt during two visits and four pick-ups and drop-offs, for a total of about two-and-a-half to three hours. The interactions were positive. AS was excited to see Maternal Aunt and tell her things. When she was with Maternal Aunt, AS, of her own volition, referred to her as "Mommy." AS had formed an attachment with Maternal Aunt through monthly overnight stays with her. On cross-examination, however, Tsutsui testified that the attachment AS had to Maternal Aunt was no different from the attachment a child would have to a regular babysitter.

If AS were placed with Maternal Aunt, AS would have therapeutic support if she needed it. DHS would not recommend immediate adoption but instead would continue to assess the placement.

When AS visited with Maternal Aunt on O'ahu, AS saw her extended family, including Maternal Aunt's brother and his wife, who had adopted AS ' s older siblings. However, none of AS's blood relatives, besides her Maternal Aunt, lived on Maui.

DHS's assessment was that Foster Family and Maternal Aunt's family were both good. The relationship between Foster Parents and Maternal Aunt was at that point very tenuous, stressful, and untrusting.

On July 4, 2011, there was an incident at the Foster Home in which a neighbor with a drinking problem came over and started talking negatively about his wife in front of Foster Family, including AS. When Foster Father tried to escort him out, he scratched Foster Father's face, and Foster Father punched him. DHS's position was that Foster Father had acted appropriately to protect Foster Family. A psychological evaluation showed that Foster Father had an anger problem and needed therapy. Tsutsui thought he was undergoing treatment but was not sure. In September 2011, AS mentioned the incident to her therapist.

On cross-examination, Tsutsui acknowledged that Maternal Aunt had made inconsistent statements to DHS regarding her father. On one hand, she spoke of her father in purely positive terms. On the other hand, in reports she filled out for Foster PRIDE (a certification training program), she indicated that she had been subjected to childhood physical neglect and abuse, sexual and emotional abuse, and major emotional neglect. She also reported that her brothers and sisters ran away to her mother's home because of abuse. Tsutsui testified that it was important to DHS that potential foster parents reveal whether they experienced trauma growing up, but people were not always forthcoming initially about negative aspects of their personal backgrounds. They wanted to present themselves in a positive light and may have difficulty talking about negative experiences.

Tsutsui testified that she was unaware of Maternal Aunt's report that during her prior marriage, her husband abused drugs and alcohol, even though that would be important information for DHS to know about a prospective resource parent.

On redirect examination, Tsutsui testified that Foster Father also had inconsistently reported his childhood abuse and neglect. In psychological evaluations of Foster Mother, Foster Father, and Maternal Aunt respectively, the psychologist stated that each of the parties had been guarded.

On cross-examination, Tsutsui testified that it would be traumatic for AS to be removed from Foster Home and separated from Foster Sisters, and AS would need support from Maternal Aunt and her family throughout that process. AS had formed attachments to her preschool and Sunday school teachers on O'ahu. If AS were denied contact with Maternal Aunt and Maternal Relatives, it would be a loss to AS as well.

Since Tsutsui had been on the case, Foster Parents had not offered to let AS visit with her relatives on O'ahu. However, there had been an incident in which a maternal uncle surprised Foster Parents by keeping AS overnight when he was supposed to only have her for a short time. The incident caused AS to have significant behavioral problems when she returned to Foster Family and may have made Foster Parents leery of having AS visit with Maternal Relatives on O'ahu.

Carleen Nakata's (Nakata's) testimony

Nakata testified that she was a "matcher" at Foster Home Licensing and recommended placement homes to the assigned social worker. Nakata met Foster Parents in 2007, when Foster Home was recommended as an emergency shelter. Nakata approved Foster Home as an emergency shelter for a year, starting on April 1, 2008. Foster Mother did a "pretty good job" providing an emergency shelter, and there were no complaints about her or Foster Father.

When AS was placed with Foster Parents on February 3, 2009, Foster Mother indicated that she did not trust Maternal Aunt or want to work with her.

Nakata noted in a report that Foster Father had eighteen prior convictions, seven of which were for violating a restraining order.

On April 8, 2009, Tarpley told Nakata that she would be filing for permanent placement of AS with Foster Parents, since no family members had come forward or expressed interest in taking AS, and Foster Mother wanted to prevent AS from being moved again. Foster Mother told Nakata that she was surprised when Tarpley asked her if she wanted to adopt AS because she thought ...

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