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In re Adoption of a Male Child, H.A.

Intermediate Court of Appeals of Hawaii

April 28, 2017

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

         APPEAL 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, 15-1-0023

          Peter Van Name Esser, for Respondent/Appellee/ Cross-Appellant P.O.

          L.A., Petitioner/Appellant pro se.

          Stephanie St. John, Appellant Guardian Ad Litem.

          Francis T. O'Brien, for Petitioners/Appellees D.W. and K.W.

          NAKAMURA, CHIEF JUDGE, LEONARD AND REIFURTH, JJ.

          OPINION

          LEONARD, J.

         This 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)[1] 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.

         Appellant/Cross-Appellee 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.

         I. BACKGROUND

         A. Pre-Trial

         R.A. 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.

         R.A. 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.

         H.A. 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.

         On June 15, 2015, the Foster Parents filed a Petition for Adoption for R.A.

         On June 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.

         In the 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 families."

         The 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."

         It 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.

         On 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 adoptive parent."

         On 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 H.A.

         On 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 Washington.
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.

         B. Trial on Adoption

         On 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.

         Foster 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.

         Sandra 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.

         Pickard 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 Parents]."

         Several 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.

         Kristin 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 relatives.

         Foster 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.

         Foster 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.

         Foster 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."

         DHS 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 attachments.

         Dr. 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 attachments."

         Dr. 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 those decisions."

         Foster 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.

         Foster 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."

         After 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.

         The 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 connections[.]"

         At the 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.

         Two of 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.

         Great 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.

         The GAL 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.

         CWS 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 the children.

         Jiminez 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.

         After 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.

         The Family Court ruled that it would leave the children where they were, with Foster Parents.

         C. The Family Court's Rulings

         On 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.

         On 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 included:

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 ...

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