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In re AS

Supreme Court of Hawaii

February 14, 2014

IN THE INTEREST OF AS

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0001065; FC-S No. 08-11941).

Patrick A. Pascual for petitioner.

Francis T. O’Brien for respondents Foster Parents.

Kimberly S. Towler for respondent Volunteer Guardian Ad Litem Program.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.; WITH ACOBA, J., CONCURRING SEPARATELY, WITH WHOM POLLACK, J., JOINS.

OPINION

McKENNA, J.

I. Introduction

In this appeal, the Family Court of the First Circuit ("family court") awarded custody of AS, a minor foster child, to AS's non-relative foster parents, contrary to the Department of Human Services' ("DHS") recommendation that AS be permanently placed with her maternal aunt. At issue in this appeal is whether the family court reviews DHS's permanent placement recommendations for children in foster care under an abuse of discretion or best interests of the child standard. The ICA chose the latter standard, holding, "[T]he family court, based on the evidence presented, must make its own determination regarding whether the placement of the child is in the child's best interest." In re AS, 130 Hawai'i 486, ___, 312 P.3d 1193, 1213 (App. 2013). DHS now appeals. On certiorari, DHS presents four questions:

1. In ruling that DHS, as the permanent custodian of a child, did not have the discretion to determine a child's placement, did the ICA commit grave errors of law by:
a) Disregarding (and overturning) the Hawaii Supreme Court's ruling in In re Doe, 100 Haw. 335, 346 & [n.]19, 60 P.3d 285, 296 & [n.]19 (2002) that held when DHS is appointed the permanent custodian of a child, DHS has the discretion to determine the child's permanent placement?
b) Violating the rules of statutory interpretation when it erroneously held that while HRS § 587A-15(d)(2) gave DHS, as a child's permanent custodian, the duty and authority to determine a child's placement, DHS had no discretion because of the absence of the word "discretion?" Does the ICA's holding create absurd results, such as making the Judiciary, instead of DHS, the primary child-placing agency when children are placed in temporary foster, foster and permanent custody, notwithstanding contrary statutory language and legislative intent?
2. Did the ICA commit grave errors of law in ruling that the standard and burden of the family court's review of DHS' permanent placement decision required DHS to prove that its permanent placement decision was in the child's best interest, instead of placing the burden on the person challenging DHS' placement decision to prove that DHS abused its discretion in making its assessment? Was the ICA's ruling also inconsistent with the Supreme Court's ruling in In re Doe[, ] 101 Haw. 220, 231, 65 P.3d 167, 178 (2003)?
3. Did the ICA commit grave errors of law in ruling that Federal and Hawaii law did not create relative/family placement preferences for children in foster care, including those in the permanent custody of DHS?
4. Did the ICA commit grave errors of law by ruling that the family court was not required to remove DHS as the child's permanent custodian after ruling that DHS abused its placement discretion?

Although we affirm the ICA's judgment on appeal, we also clarify the ICA's opinion to hold that (1) the party challenging DHS's permanent placement recommendation bears the burden of proving by a preponderance of the evidence that the permanent placement is not in the child's best interests; (2) as an agency with child welfare expertise, DHS, as permanent custodian of a child, has the discretion in the first instance to determine where and with whom a child shall live; (3) any relative placement preference found in Title IV-E of the Social Security Act does not condition the receipt of federal funds thereunder upon permanent placement of foster children with relatives; (4) there is no relative placement preference in Hawai'i Revised Statutes ("HRS") Chapter 587A (the "Child Protective Act" or "CPA") with regard to permanent placement of foster children; therefore, to the extent that DHS's Policy Directives PA Nos. 2005-5, -7, and -8 mandate such a preference, those policies impermissibly alter the CPA and its legislative history; and (5) In re Doe, 101 Haw. 220, 65 P.3d 167 (2003) ("March 2003 Doe") does not stand for the proposition that the family court must relieve DHS of its permanent custodianship if the family court disagrees with DHS's permanent placement decision.

II. Background

A. Factual Background and Family Court Proceedings

The following facts (except where supplemented in footnotes) were taken from the family court's Findings of Fact and Conclusions of Law. On certiorari, none of the Findings of Fact are contested, and are, therefore, binding upon this court. See Kelly v. 1250 Oceanside Partners, 111 Hawai'i 205, 227, 140 P.3d 985, 1007 (2006).

[AS] was born on July 22, 2008. At birth she weighed 5 pounds, 10.9 ounces. She was drug exposed in utero. [AS] was taken into foster custody on July 24, 2008, via biological parents' voluntary foster custody agreement. [DHS] has been the case manager offering services and monitoring the delivery of services throughout this case. DHS filed a Petition for Foster Custody on August 7, 2008. Since July 2010, DHS has been [AS's] permanent custodian. The Volunteer Guardian Ad Litem ("VGAL") Program was appointed by the court to serve as [AS's] guardian ad litem on September 23, 2008.

[Foster Parents] are the licensed foster parents for [AS]. Foster Parents are not biologically related to [AS]. DHS placed [AS] with Foster Parents on July 24, 2008. DHS found this an appropriate home as "these foster parents have been fostering children for many years."

On or about August 28, 2008, DHS removed [AS] from Foster Parents' home and placed her in the home of family friends, who had previously been foster parents to one of [AS's] half-siblings .

Father appeared at a hearing with his court appointed attorney on October 8, 2008, and, after accepting Father's stipulation, the court took jurisdiction and awarded foster custody of [AS] to DHS.

On February 3, 2009, DHS removed [AS] from her foster home at the foster family's request because of the foster mother's health issues. DHS returned [AS] to [Foster Parents] "as they had told DHS that if [AS] needed a home, they would be happy to have her return. They are experienced foster parents and love [AS]." [AS] has continuously remained in her placement with Foster Parents since she was returned to their home on February 3, 2009.

DHS filed its Motion for Order Awarding Permanent Custody and Establishing a Permanent Plan on June 19, 2009. At a June 29, 2009 court hearing, DHS submitted a proposed permanent plan, dated May 26, 2009. It recommended that permanent custody be awarded to DHS, stating that "DHS assesses that [AS] deserves to have a permanent home where all her needs will be consistently met as they have been since 7/24/08." The proposed permanent plan also stated:

[AS's] current non-relative caregiver is interested in adoption and providing a permanent home for [AS]. The non-relative caregiver is willing to maintain family connections by supervising visits after adoption for father. As mother is incarcerated, foster mother is not permitted to bring [AS] into the facility. However, once mother is released, foster mother is willing to supervise visits with mother as well. An Ohana Conference is being requested for the family to meet the foster mother. Maternal relatives are either unwilling or unlicenseable to care for [AS]. Father has stated he has no relatives. This has been confirmed via EPIC family finding efforts.

In June 2009, [a DHS social worker assigned to AS's case] asked [one of the Foster Parents] if she and [the other Foster Parent] were interested in adopting [AS]. [Foster Parents] immediately indicated that they wanted to adopt [AS].

[AS's Maternal Aunt] is an intervening party, her motion to intervene having been granted on June 15, 2011. [Maternal Aunt] has lived on Maui with [her daughter] since December 2007. [Maternal Aunt] testified that in September or October 2008 she informed [AS's DHS social worker] that she was unable at the time to care for [AS]. [Maternal Aunt] applied to be a foster parent and was approved by DHS for placement of [AS] in October 2009.[1] Once [Maternal AuntJ's home was approved for placement, DHS took the position that [AS] should be placed with her on Maui. In December 2009, pursuant to court order, [AS] began having regular visits with [Maternal Aunt].

Mother stipulated to the termination of her parental rights and after a trial on DHS's Motion for Order Awarding Permanent Custody and Establishing a Permanent Plan, Father's parental rights were terminated.[2]

Because of the differing positions of DHS and the VGAL regarding the placement of [AS], a placement trial was set for October 4, 2010. The placement trial commenced on October 3, 2011, continued on October 5, 2011, and was completed on October 6, 2011. The basic issue for the trial was whether [AS] should maintain her current placement in the [Foster Parents' ] home or be moved to a placement with [Maternal Aunt] on Maui. DHS, as [AS's] permanent custodian, determined that it was in [AS's] best interests to be permanently placed with [Maternal Aunt]. [Maternal Aunt] agreed with DHS. The Foster Parents and the VGAL Program disagreed with DHS and sought an order from the court prohibiting DHS from removing [AS] from her placement with Foster Parents and making Foster Parents her permanent placement.

The court rendered its oral decision on October 31, 2011, reflected in its Order Re: Trial on Placement, filed November 18, 2011.[3]

At the time of the trial, [AS] had lived with Foster Parents for most of her life (approximately 34 of 39 months). [AS] views her current placement as her home. [AS] is bonded to all of the members of her foster home, including [Foster Parents and their children]. [AS] has a deep attachment to [one of the Foster Parents], who has been her primary caregiver for almost all of her life. [AS's] relationship with [Maternal Aunt] has developed into a strong one and she has formed a bond with [Maternal Aunt]. However, her relationship with Foster Parents is stronger than it is with [Maternal Aunt].

DHS supports placement of [AS] with [Maternal Aunt] because of its policy[4] in favor of kin placements. [A DHS social worker] testified credibly on behalf of DHS that, but for the blood relationship between [AS] and [Maternal Aunt], DHS would not remove [AS] from the Foster Parents' home. [Another DHS social worker] testified credibly on behalf of DHS that, apart from [Maternal Aunt's] blood relationship to [AS], DHS believes that there is nothing else that distinguishes her home over Foster Parents' home. There is nothing about the quality of the care that [AS] has received in Foster Parents' home that requires the removal of [AS].

Removing [AS] from her placement with Foster Parents on Oahu for placement with [Maternal Aunt] on Maui will cause her to experience a sense of loss, because she is attached to her foster family, and it is impossible to predict how these losses will impact her as she gets older or how she will react to these losses. Removing [AS] from her placement with Foster Parents for placement with [Maternal Aunt] on Maui will be traumatic to [AS], even if the transition goes smoothly and she is able to maintain meaningful contact with her current foster family.

It would be harmful to [AS] if contact with her current foster family were not maintained after she was removed from their home. It would be extremely traumatic to [AS] were a placement with [Maternal Aunt] to fail for any reason. The trauma and loss [AS] will suffer if she is removed from her current placement, especially at this important time in her life developmentally, is not in her best interests, even considering the fact that it means she will not be raised on a day to day basis by a member of her biological family. DHS has given inadequate weight to the loss and trauma that [AS] will suffer and the harm that removal from Foster Parents will cause. It is in the best interests of [AS] to remain in her placement with Foster Parents. It is not in [AS's] best interests to be removed from her placement with the Foster Parents and placed with [Maternal Aunt] on Maui. The application in this case of DHS's policy regarding placement with kin[, ] considering all of the circumstances in this case, is not in [AS's] best interests.

The family court's conclusions of law were as follows:

1. Pursuant to HRS § 587A-15(d)(2), DHS has the authority to determine where and with whom a child in its permanent custody shall live.
2. DHS's determination that a placement for a child in its permanent custody is in the child's best interests is an ultimate finding of fact that is reviewable by the family court under the clearly erroneous standard of review. In re Doe, 89 Hawai'i 477, 487 (App. 19 9 9); In re Jane Doe, 7 Haw.App. 547, 556-558 (1989) .
3. The court can only find that DHS has abused its discretion in exercising its authority to determine where and with whom a child in its permanent custody shall live if DHS's ultimate factual finding that a placement for the child is in his/her best interests is clearly erroneous.
4. A finding of fact 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 reviewing court is nonetheless left with a definite and firm conviction that a mistake has been made. In re Doe, 89 Hawai'i at 487.
5. It is in [AS's] best interest to remain in her placement with Foster Parents.
6. It is not in [AS's] best interest to be removed from her placement with the Foster Parents and placed with [Maternal Aunt] on Maui.
7. DHS's ultimate finding of fact that placement of [AS] with [Maternal Aunt] is in her best interests is clearly erroneous, insofar as the court is left with definite and firm conviction that, despite, substantial evidence in support of DHS's finding, a mistake has been made by DHS.
8. DHS has abused its discretion in exercising its authority to determine where and with whom [AS] shall live, because its determination that placement of [AS] with [Maternal Aunt] is in her best interests is clearly erroneous.
9. The court has the authority to direct DHS to maintain [AS's] placement with Foster Parents. In re Doe, 101 Hawai'i 220, 230-31 (2003).
10. Notwithstanding the court's findings and conclusions that DHS has abused its placement discretion in this case, there is not good cause to remove DHS as [AS's] permanent custodian.
11. To the extent that any of the findings of fact set forth above can be construed to be conclusions of law, they are incorporated herein as conclusions of law.

B. Appeal

DHS timely appealed the family court's Order Re: Trial on Placement. Maternal Aunt did not appeal. Relevant to this Application, DHS raised the following points of error on appeal:

2) As a matter of law, the family court was wrong by failing to follow and apply Hawaii and Federal child protective laws that created family placement preferences to place children in State foster care with their family, if appropriate. . . . The family court further erred by focusing on DHS' family placement policy preference (that is in accord with Federal and Hawaii law) ....
3) As a matter of law, the family court was wrong by creating a contradictory two-step standard of proof, in contravention of existing law, by first requiring DHS to prove that its proposed discretionary placement with Maternal Aunt was in A.S.'s best interest, and if DHS did not meet its burden, then the burden shifted to the parties opposing DHS' discretionary placement recommendation to prove that DHS abused its discretionary placement recommendation. . . . The correct standard of proof requires the parties opposing DHS's discretionary placement recommendation to prove that DHS abused its discretion, as the [sic] A.S.'s permanent custodian, in determining which placement is in the [sic] A.S.'s best interests. . . . The family [court] ultimately used a pure "best interests of the child" analysis . . . which [was] wrong.
4) As a matter of law, the family court was wrong in failing to consider the passage of time caused by DHS' obligation to give Father the opportunity to reunify on Oahu and its negative impact on the exercise of its placement discretion to place A.S. on Maui.
6) As a matter of law, The Family Court was wrong in denying DHS' request to be discharged as A.S.'s permanent custodian, after ordering DHS not to place AS with her maternal aunt.

DHS requested that the ICA "reverse the family court's placement ruling, and issue orders authorizing DHS to place AS with her maternal aunt or remand to the family court to issue such orders." In the alternative, DHS requested that the ICA "reverse the family court's denial of its request to be discharged as A.S.'s permanent custodian, and issue orders granting DHS' request or remand to the family court to issue such orders." The Foster Parents and the VGAL, on the other hand, asked the ICA to affirm the decision of the family court.

The ICA affirmed the family court in a published opinion. In re AS, 130 Hawai'i 486, 312 P.3d 1193. The ICA summarized the family court's review of DHS's placement decision as follows:

The family court ultimately applied a two-prong standard of review that involved (1) independently deciding whether DHS's placement decision was in AS's best interest; and (2) if the court found the placement was not in AS's best interest, reviewing DHS's placement decision for an abuse of discretion, which meant deciding whether DHS's "best-interests" determination was clearly erroneous based on a preponderance of the evidence.

In re AS, 130 Hawai'i at ___, 312 P.3d at 1210. The ICA noted that the family court based its standard of review determination on In re Doe, 7 Haw.App. 547, 557-58, 784 P.2d 873, 880 (1989) ("1989 Doe"), which noted, "[T]he decision as to what custodial arrangements are in the best interest of a specific child is a matter for the court's discretion, " then held that decision "is a matter or question of ultimate fact reviewable under the clearly erroneous standard of review." In re AS, 130 Hawai'i at ___, 312 P.3d at 1210, 1212. The ICA then overruled this holding in 1989 Doe as applied to the family court's review of DHS's determination that a certain placement is in a child's best interests, but it left the holding intact as applied to appellate review of a family court's decision as to which placement is in a child's best interests. In re AS, 130 Hawai'i at ___, 312 P.3d at 1213, 1213 n.18. The ICA concluded that the family ...


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