IN THE MATTER OF ADOPTION OF A MALE CHILD, H.A., and IN THE MATTER OF ADOPTION OF A MALE CHILD, R.A., and IN THE MATTER OF THE ADOPTION OF AMALE CHILD, R.A., By K.W. and D.W., husband and wife, and IN THE MATTER OF THE ADOPTION OF AMALE CHILD, H.A., By K.W. and D.W., husband and wife, and IN THE MATTER OF THE ADOPTION OF AMALE CHILD, R.A., By P.O., a single person, and IN THE MATTER OF THE ADOPTION OF AMALE CHILD, H.A., By P.O., a single person
FROM THE FAMILY COURT OF THE THIRD CIRCUIT FC-A NOS.
15-1-0025, 15-1-0016, 15-1-0013, 15-1-0021, 15-1-0022,
Van Name Esser, for Respondent/Appellee/ Cross-Appellant P.O.
Petitioner/Appellant pro se.
Stephanie St. John, Appellant Guardian Ad Litem.
Francis T. O'Brien, for Petitioners/Appellees D.W. and
NAKAMURA, CHIEF JUDGE, LEONARD AND REIFURTH, JJ.
case involves competing petitions for the adoption of two
young brothers, R.A. and H.A., who were under permanent
custody of the Department of Human Services (DHS).
Petitioners/ Appellees the Foster Parents, DHS (on behalf of
Respondent/ Appellee/Cross-Appellant Great Aunt), and
Petitioner/Appellant Grandmother, each filed adoption
petitions for R.A. and H.A. The Family Court of the Third
Circuit (Family Court) held a trial on all petitions and, on
November 10, 2015, entered Adoption Decrees granting the
Foster Parents' petitions to adopt R.A. and H.A. On
December 8, 2015, the Family Court entered an order denying
DHS's and Grandmother's adoption petitions.
Guardian ad Litem for R.A. and H.A. (GAL) appeals,
Grandmother appeals pro se, and Great Aunt
cross-appeals, from the Family Court's: (1) November 10,
2015. Adoption Decree granting the Foster Parents1 petition
for adoption of R.A.; (2) November 10, 2015 Findings and
Decision of the Court Granting the Foster Parents'
Petition for Adoption of R.A.; (3) November 10, 2015 Adoption
Decree granting the Foster Parents' petition for adoption
of H.A.; (4) November 10, 2015 Findings and Decision of the
Court Granting the Foster Parents' Petition for Adoption
of H.A.; and (5) December 8, 2015 Order Denying Petitions for
Adoption. On March 11, 2016, this court consolidated all six
appeals under CAAP-15-0000929.
was born in December of 2011. He was removed from his
biological parents and placed in foster custody in February
of 2013. DHS was involved because of allegations of lack of
supervision, threat of neglect, and because R.A. was exposed
to and tested positive for marijuana. The GAL was appointed
for R.A. on February 19, 2013.
was placed with CO., a maternal aunt, from March 28, 2013 to
January 31, 2014. R.A. was then placed with the Foster
Parents by DHS Child Welfare Services on January 31, 2014, as
resource caregivers. On October 9, 2014, DHS wrote a
Permanent Plan for R.A. The Foster Parents, Grandmother, and
Great Aunt, who lives in Washington state, were all
considered as potential permanent placements at that time.
was born in March of 2015. On March 31, 2015, DHS assumed
custody of H.A. On April 8, 2015, the same GAL was appointed
to protect the interests of H.A.
15, 2015, the Foster Parents filed a Petition for Adoption
29, 2015, DHS wrote a Revised Permanent Plan for H.A., in
which DHS deemed that Grandmother was
"inappropriate" as a permanent placement. DHS
reported that Grandmother "has verbalized an interest in
completing a guardianship of [R.A.] because she would like to
see Father's child returned to him." "Another
concern" was her "ability to remain impartial and
protective" of the children. Grandmother told DHS that
"she is allowing Mother and Father to live rent-free in
her home." DHS was concerned that Grandmother was
"too vested in her own son's welfare to be
completely and fully protective of her grandchild." DHS
also noted concerns of Grandmother's "history of
drug abuse, " although both Grandmother and her partner
submitted to and passed random urinalysis testing.
same report, DHS stated that as it pertains to the Foster
Parents, a "continued concern of possible permanent
placement with [the Foster Parents] is whether they would not
maintain family connections, other than the maternal aunt,
[CO.], whom they are friends with. It is the belief of the
DHS that [the Foster Parents] will not support family
connections." DHS stated, inter alia, that
"the most appropriate permanent placement in the best
interest of [H.A.] is one that includes his older brother,
[R.A.]. The Maternal Great Aunts . . . are relatives who have
historically been very supportive of maintaining safe
connections with both the maternal and paternal
Foster Parents filed, on July 2, 2015, an ex parte motion for
injunction against R.A.'s change in placement. On July
10, 2015, DHS, the GAL, and the Foster Parents appeared
before the Family Court. DHS reported to the Family Court
that H.A. was placed in Washington, and DHS wanted to place
R.A. in Washington with Great Aunt as well. The Family Court
stated that "this child has been there before and not
suffered any harm on account of it. So doing it again
doesn't seem to be harmful."
appears that the biological parents' parental rights were
terminated with respect to R.A. on July 9, 2015, and H.A. on
July 16, 2015, in separate proceedings, and permanent custody
of both children was awarded to DHS.
August 4, 2015, DHS filed petitions for adoption on behalf of
Great Aunt for R.A. and H.A. DHS stated that adoption by
Great Aunt "will be in the best interests of the
child." DHS filed consents to both adoptions, declaring
that Great Aunt "is a suitable and legally qualified
August 4, 2015, the Foster Parents filed a petition for
adoption of H.A. On August 4, 2015, Grandmother filed her
petition for adoption of R.A., which included, inter
alia, that she had one criminal conviction. On August
10, 2015, Grandmother also filed a petition for adoption of
August 4, 2015, the Foster Parents, DHS, and the GAL returned
to the Family Court, for what appears to be a status
conference or continued hearing on the Foster Parents'
request for an injunction. The court stated:
I've been talking with the attorneys for some time now,
and while this is an important issue, I expressed to them my
belief that regardless of how things work out in the
adoption, that it's important for me, and I think
it's in the best interests of the boys with their life
going forward, that they be placed together, and I also
believe that, and I'll say it here, I'm going to have
to say it again soon in the presence of the paternal
grandmother, I don't believe that she is a viable
candidate for adoption, but, however, you, as well as the
folks on the mainland, are, and I would like to have the
opportunity for me to receive information about how both boys
are doing if placed with you and how both boys are doing or
will continue to do for the next few days placed together in
So what the court is going to do is the following . . . .
I'm going to order that the guardian ad litem leave here
on the 13th and retrieve both boys, and they're to return
here by no later than the 15th.
Trial on Adoption
August 27 and 28, September 29, and October 1, 2015, the
Family Court heard evidence regarding all six adoption
petitions. DHS, Great Aunt, Grandmother, the Foster Parents,
and the GAL appeared.
Parents1 expert witness, Karen De Soto (De Soto), was
qualified as an expert in child development attachment and
trauma. De Soto conducted two observation sessions of the
children with the Foster Parents. The first visit was a home
visit that lasted an hour. The second visit occurred at the
zoo. De' Soto spent a total of three and a half hours
with the children. She opined that the Foster Parents
"were functioning as kind of a secure base" for
R.A. When asked to assess the level of comfort that R.A. has
in the home, De Soto stated that R.A. "looked to me like
he was very much at home." De Soto testified that R.A.
appeared to be securely attached to the Foster Parents. De
Soto testified that she "thought his attachment to
[Foster Mother] looked very secure." De Soto testified
that a move away from Hawai'i Island for R.A. would be
difficult, but that did not mean that he could not adjust.
Pickard (Pickard) testified, as a witness called by Foster
Parents, and was qualified as an expert in child development
attachment and trauma. She met R.A. at home on one occasion
and "read all of the court reports" and "GAL
reports." Pickard testified that the brains of children
under four are in a state-of rapid development and growth.
Pickard testified that the primary attachment relationship is
essential to the development of the brain. According to
Pickard, a child that has had more than one disruption in
their primary attachment will have an accumulation of
emotional distress, which could be severe.
also opined that R.A. has an increased need for stability and
that it is not in R.A.'s best interest to be removed from
the Foster Parents' home and placed elsewhere. Pickard
admitted, however, "I can't directly speak a lot
about [R.A.] from my own personal knowledge so I'm going
on what I know from the information in the reports and, urn,
in my one visit[. ] " Pickard testified that the reports
reflect that R.A. is "a happy well-adjusted child."
Pickard further believed that R.A. "right now has
established a very, urn, positive attachment with the [Foster
of the Foster Parents' friends testified in support of
the Foster Parents. Each testified that R.A. adjusted well to
the Foster Parents and spoke highly of the Foster
Parents' parenting skills.
Omoto (Omoto) testified. Omoto is the licensed social worker
at DHS's Child Welfare Services (CWS) that supervised
R.A. during his placement with the Foster Parents. Omoto gave
the Foster Parents Grandmother's telephone number and
asked them to call and arrange visits. When the Foster
Parents later told Omoto they wanted to adopt R.A., there was
a concern that if they were to adopt the children that they
would not foster relationships with the children's blood
Mother testified. Foster Mother and Foster Father married in
2001. They could not conceive, so they decided to adopt. They
became foster parents and R.A. moved to their home in January
2014. Foster Mother testified that she limited R.A.'s
visits with CO. and her children so R.A. could adjust to the
Foster Parents' home. Foster Mother also testified that
DHS told her that Grandmother was not to have unsupervised
contact with R.A. and that any visits would be at the Foster
Parents' discretion. Because DHS was not comfortable with
unsupervised visits, Foster Mother felt the same way. The
concern was that Grandmother was a "weak link" to
her son, R.A.'s biological father. Grandmother was never
invited to her home or any family function because Foster
Mother had concerns. Foster Mother testified that CO. also
had expressed concerns about how Grandmother would be able to
maintain a safe environment for R.A.
Mother testified that she facilitated the visits with Great
Aunt, when she came to Hawai'i. Foster Mother testified
that she saw regressions in potty training, disruption of
sleep, and that R.A. was more moody after returning from
Seattle. Foster Mother also testified that she facilitated
Skype calls between R.A. and Great Aunt.
Mother testified that if she were granted adoption of H.A.
she would envision H.A, having similar visits with
Grandmother that R.A. does. Foster Mother testified that she
would want to continue R.A.'s visits with Grandmother if
she was granted adoption and that she would expect that
Grandmother would have "longer visits" in the
future. Foster Mother stated that if she was able to adopt
the children, Skyping between R.A. and Great Aunt
"certainly would continue as it has" and as the
boys got older, "they would be able to stay for longer
periods in Seattle."
called Dr. Steven Choy (Dr. Choy), a clinical psychologist,
to testify as an expert in the fields of child maltreatment,
trauma, child trauma, developmental disabilities and
attachment. Dr. Choy testified that "attachment is the
mechanism which in terms of human beings, and especially in
children, develop a dependency in a sense to the person that
they have to attach to." Dr. Choy testified that secure
attachment is important to brain growth. Dr. Choy testified
that having multiple placements puts children at a higher
risk for problems, but not necessarily more problems. Dr.
Choy testified that a child can have multiple secure
Choy testified that from birth to about nine to ten months, a
child can easily attach and reattach. From nine months to
about eighteen months it is "a little bit harder to
move." From two years old to three years old is
"really one of the hard times." Dr. Choy testified
that "the studies show that if you move from one primary
attachment that was good to another primary attachment that
was good, you don't see a whole lot of problems."
Dr. Choy testified that a child who is almost four can
transition "pretty quickly" to a new environment
and that "children that are adopted by kin do have a
better chance for family attachment and continuing
Choy never met with the children, and the only information he
received about the case was information he received from DHS.
Dr. Choy was given a copy of Pickard's written testimony
dated August 4, 2015. Dr. Choy testified that it usually
takes four to five hours to do a sufficiently comprehensive
evaluation to give the assessment that Pickard did. Dr. Choy
also testified, "I don't know if [Pickard] is
trained to do those psychological tests that can help us make
Father testified. Foster Father testified that if they were
able to adopt, he would envision visitations with Grandmother
" [in] ore or less the same as it is now, possibly a
little restructuring to where maybe we do a little longer
visitation, I don't know, once a month, as opposed to
doing two, but we would definitely continue that. We want to
continue that relationship." As far as Great Aunt,
Foster Father testified that "we definitely would
continue the Skype calls" and "we would like to
have them go back and, of course, stay in Seattle for a short
time." Foster Father stated that "we would continue
a relationship with" R.A.'s family in Hawai'i.
Father also testified that he has a medical marijuana permit
that he obtained shortly after moving to Arizona, five years
ago. He testified that he uses marijuana to address chronic
knee pain, which is due to playing lacrosse in high school
and being a chef for over twenty years; Foster Father stated
that he wore away the cartilage in his knees. Foster Father
testified that he currently obtains his marijuana through a
caregiver. He previously purchased it "through what
normal means there were at the time." When asked to
clarify what that meant, Foster Father's counsel invoked
his Fifth Amendment right against self-incrimination. Foster
Father testified that he occasionally smokes marijuana -
"[n]ightly or every other night, not always the
same." He testified that he does not smoke marijuana
around R.A., but smokes it outside after R.A. goes to bed. He
testified that he stores his marijuana on the "very top
shelf" of his closet, where R.A. does not have access.
Foster Father testified that he did not inform DHS of his
marijuana permit because he "was never asked."
two days of trial, on August 28, 2015, the Family Court
stated, "We're going to address the issue of where
these kids are going to be between now and September
29th." DHS, Great Aunt, and the GAL requested that both
children go with Great Aunt. DHS explained that this was the
potential permanent placement that they had been working
toward. Grandmother requested that H.A. go to Great Aunt, and
R.A. stay with the Foster Parents. The Foster Parents
requested that both children stay with them.
Family Court stated that it would apply the standard of
"the best interest of the children" and, as the
boys recently returned from the mainland, "another move
at this point in time would be disruptive." The Family
Court stated that with H.A.'s age, "attachments are
easier" and so "remaining here and then traveling
again would not present the kind of trouble that it would
were he older." "For [R.A.], of course, the
testimony is clear that transitions are more difficult at his
stage of development. He does seem to be very
resilient." The Family Court noted that the
children's "closest blood relatives" are
located on the island of Hawai'i and ruled that both boys
"will remain here in Hawaii in the home of [the Foster
Parents] during the recess of these proceedings between now
and when these proceedings conclude." The Family Court
also ordered that the children remain in the permanent
custody of DHS, but be placed pendente lite with the
Foster Parents. The Family Court noted, "I haven't
heard all of the evidence, but based on the evidence I have
heard, I don't have any concerns about the genuineness of
the [Foster Parents] in maintaining family
resumption of trial on September 29, 2015, Grandmother
testified. She testified that she took care of R.A. much of
his first year, because of his mother's drug and alcohol
issues. Grandmother testified that the Foster Parents have no
interest in maintaining family values and connections with
the extended family. Grandmother admitted that she was
convicted of growing 876 marijuana plants, and spent three
years in prison. However, she had completed a drug treatment
program and considered herself to be recovered.
Great Aunt's friends testified in support of Great Aunt
and testified that she was great with the boys and that she
offered a safe and loving home. Great Aunt testified that she
had been to Hawai'i eight times to see R.A. and to work
with DHS on permanent placement. R.A. visited Seattle three
times, for a total of six weeks, and showed no stress during
those visits. H.A. stayed with them for five weeks.
Aunt testified that she had Skyped with R.A. since the Foster
Parents had him "probably anywhere from one to three
times a week." Great Aunt testified regarding a
Christmas morning where Foster Mother was not cooperative
with Great Aunt's request to Skype with R.A.
testified. The GAL observed R.A. in the home of all adoption
petitioners. The GAL testified that he seemed comfortable in
all environments. After discussing with Grandmother that
Grandmother was not getting visits with R.A. after R.A. was
placed with the Foster Parents, the GAL put it in her report
that "those visits needed to happen." The GAL
testified that Foster Mother's report that R.A. had
problems with potty training came six weeks after R.A.
returned from Washington. The GAL recommended that both
children be adopted by Great Aunt.
Supervisor Maria Jiminez (Jiminez) testified that:
The policy regarding placement really involves trying the
best that we can to find suitable family members.
That's first and foremost. The other part of that is that
the most important thing to the Department is beyond trying
to find good family members, we're also trying to do what
we think is in the very best interest of the children. So
actually what's most important, of course, is what's
best for the children, and this is the law that we've
been talking about that's changed.
In this particular case, I think both of those things are
very definitely met by placing this baby or these two
children with their maternal aunties.
Sometimes we have to choose what's best, and we would
always have to go with what's in the best interests of
also testified that R.A. is very well adjusted and seemed to
be doing really well with both of his placements, both here
and in Washington.
the close of evidence, the Family Court stated that it needed
to "rule on placement of the boys in the interim."
The court asked for written closing arguments to be submitted
and for suggestions with regard to placement for the two week
period before the court's final decision. Grandmother
offered to take the children for the two weeks. Both the GAL
and counsel for Great Aunt agreed that Grandmother should
have children for the two weeks. However, counsel for the
Foster Parents objected because "[t]here's been
reservations in the past about long-term visits." The
Family Court stated to Grandmother:
I think it's unlikely that I'll grant your adoption
petition, not because I don't think - not because I think
you're a bad person or anything like that, but that of
the contestants, and that's probably the best word I can
use, that you offer them the least in terms of a future, and
I say that mainly because I - family courts are, I think, by
nature, really conservative places, and while you may be a
different person than you were at the time of your criminal
activity, at the time of your prosecution, at the time of
your incarceration, those are things that I cannot ignore,
and neither of the other contestants presents that kind of
hurdle. It's a hurdle. Frankly, it's there for all of
your life, and you know it. So that's my - that's my
concern with placement with you.
Family Court ruled that it would leave the children where
they were, with Foster Parents.
The Family Court's Rulings
October 15, 2015, the Family Court filed a Memorandum
Decision, awarding the boys to the Foster Parents. The Family
Court wrote, inter alia;
Justice McKenna wrote in A.S. that DHS' preference was
entitled to agency deference, and a party opposing the
preference had the burden of establishing that the preference
was not in the best interests of the children. The burden of
proof, however, is a preponderance of the evidence. So
proving that one proposed adoption is in the children's
best interests by definition establishes that any other
proposed adoption is not. What the A.S. decision makes most
clear is that the Family Court must exercise its own judgment
concerning what is in the best interests of children involved
in custody disputes.
November 10, 2015, the Family Court filed Findings and
Decision of the Court Granting Petition for Adoption, and an
Adoption Decree, in FC-A No. 15-1-0013 and FC-A No.
15-1-0021, granting the Foster Parents' petitions as to
R.A. and H.A. On November 10, 2015, the Family Court filed
its Findings of Fact (FOFs), Conclusions of Law (COLs), which
6. Under HRS § 578-8(c) (1) (H) [sic], DHS' consent
is not required if it has been unreasonably withheld.
7. In a contested adoption, DHS's consent to one
petitioner and not another is the legal equivalent of a DHS