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In re AB

Supreme Court of Hawaii

December 16, 2019

IN THE INTEREST OF AB

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-18-0000010; FC-S NO. 15-0007)

          Peter L. Steinberg for petitioner.

          Ian T. Tsuda, Julio C. Herrera, Kurt J. Shimamoto, and Patrick A. Pascual (Sandra L.S. Freitas and Julio C. Herrera on the brief) for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          AMENDED OPINION

          RECKTENWALD, C.J.

         I. INTRODUCTION

         This case requires us to address the proper consideration and weight of a hanai[1] relationship in the context of a child welfare proceeding. We conclude that a hanai relative who is a child's resource caregiver has an interest in that child's custody sufficient to allow intervention in such proceedings under Rule 24(a) (2) of the Hawai'i Family Court Rules (HFCR). In addition, we conclude that, when conducting a best interest of the child analysis, family courts must consider that child's hanai relationships.

         The case involves a 7-year-old child, AB, who is now 12. After a short time in foster care, AB reunified with her father and lived in a home with him, his longtime girlfriend, KL, and their child, AB's younger half-sister. AB's father moved out a few months later, but AB, as keiki hanai[2] of KL, remained in the same home with her. AB lived there for over a year until the family court changed her placement to her maternal great-aunt and -uncle's home in New Hampshire.

         At the hearing changing AB's placement, KL unsuccessfully urged the family court to recognize her interest in the proceeding.[3] KL appealed, and the ICA vacated the family court's order denying intervention, holding that because KL had filed a petition to adopt AB, she had a sufficient interest in AB's custody or visitation to intervene as a matter of right. KL filed an application for certiorari seeking this court's further review. She argues that, in addition to her pending adoption petition, her status as a hanai relative conferred a substantive interest in AB's placement.

         We accepted certiorari to clarify that the family court should have allowed KL to intervene during AB's placement hearing based in part on her status as AB's hanai parent. The family court committed an additional error when it failed to examine AB's best interests prior to changing her placement to New Hampshire. And, as part of the best interests analysis, the family court should have considered AB's hanai relationships.

         II. BACKGROUND

         AB was born to her mother, SH ("Mother"), and her father, JB ("Father"). Mother and Father were never married. AB has two younger maternal half-siblings, PD and Baby, [4] from Mother's other relationships. Mother is originally from New Hampshire and has a large extended family there, including her aunt, SH. Father is from Hawai'i and has Native Hawaiian ancestry. Father began a relationship with the petitioner, KL, who also has Native Hawaiian ancestry, when AB was around three years old. The parties agree that KL is AB's hanai relative.[5]

         A. Family Court Proceedings

         1. Initiation of Foster Custody

         On January 29, 2015, shortly after Mother gave birth to Baby, the Department of Human Services ("DHS" or "Department") initiated protective proceedings with respect to Mother's three children, including AB, by filing a Petition for Temporary Foster Custody. The family court granted temporary foster custody.

         2. Reunification with Father

         AB was unable to live with Father when the Department initiated protective proceedings because Father was living at his parents' home, and his father was a registered sex offender. However, Father began actively looking for housing, and AB and Father had regularly scheduled supervised visits. In accordance with a family service plan, Father engaged in services with the hopes of reunifying with AB.

         According to a March 3, 2015 'Ohana Conference Report, Father and AB had "a strong support in [Father]'s partner, [KL]." Father and KL had been in a relationship for several years, and they had a child together, TL (AB's paternal half-sister). In a June 5, 2015 Safe Family Home Report, the Department stated that AB "asked Father if she can live with him, and she also asked her [paternal] half-sister's mother, [KL], if she can live with her as well." Father and KL began renting a home together in late 2015.

         On January 26, 2016, the family court approved the Department's permanency plan to reunify AB with Father, as Father was "continuing] to work on services that will assist [him] with reunification."

         On March 2, 2016, KL underwent a psychological evaluation to determine her ability to parent AB. KL indicated that she had been involved in AB's life for approximately five years, and that during her periods of separation with Father, KL kept in touch with AB and Mother so that AB and TL could have contact. The Safe Family Home Report dated May 23, 2016 stated, "The evaluation did not find any deficits in [KL's] ability to take care of [AB][.]"

         On March 18, 2016, AB was reunified with Father, TL, and KL under an award of Family Supervision, as the Department found, and the court agreed, that Father was able "to provide a minimally safe family home for [AB] at this time with the assistance of a court-ordered service plan."

         3. SH's First Motion to Intervene

         On February 19, 2016, AB's maternal great-aunt, SH, filed a Motion to Intervene. SH argued that she was entitled to intervene pursuant to HFCR Rule 24.[6] SH sought to intervene to ensure that the court was aware of "the concerns of the maternal extended family" and "to give [the] [c]ourt and the Department another placement option[.]" SH claimed that she was "not seeking custody" and "only want[ed] to support [PD's and AB's] fathers and be a second option if necessary[.]" SH noted, however, that she had "submitted the necessary paperwork (which the Department is mandated to consider) necessary to be considered a placement option," and she argued that she "has the legal right to seek custody, should that become necessary, pursuant to [HRS] § 571-46(a)(2)."[7] DHS opposed SH's Motion to Intervene.[8] The court denied the Motion without explaining its reasoning.

         4. Reinstatement of Foster Custody

         On May 20, 2016, the Department submitted a report to the court in advance of the next hearing. The Department reported that Father and KL "are unsure at this point if they are going to stay together[.]" The Department noted, however, that both "have agreed to co-parent their daughter and [AB], whatever the outcome. [KL] has been very loving and involved with [AB], and the girl is bonded with her." At the time, the Department recommended continuing family supervision.

         AB continued to live with KL. The Department reported that "[AB] is doing well, and bonded with [KL]. [KL] would like to become [AB's] special licensed resource caregiver."[9] While the Department noted that "Father has had visits with [AB], and helps co-parent her," it changed its recommendation from continued family supervision to foster custody, given Father's new living arrangement - back at home with his father.

         After a hearing held on June 2, 2016, the family court placed AB in foster custody and formalized AB's "placement with her hanai relative, [KL]."

         Over four months later, on October 17, 2016, the Department reported that Father had "not engaged in services or moved back into the family home since the last hearing held on June 2, 2016." The Department indicated, "As a result, [AB] is in Foster Custody with the DHS, but was able to remain in [KL]'s care. [KL] applied for, and qualified to be, a DHS special licensed resource parent to [AB]. [AB] is very bonded with [KL], who is the mother to [AB]'s half sister, and has known her several years prior to placement."

         The Department further reported that since the last review period, Father had minimal contact with KL and DHS, and had not followed through with any recommended services. The report provided, "[AB] has visits with paternal and maternal relatives and enjoys spending time with them. [KL] makes efforts to ensure [AB] has family visits with her relatives" and "has made efforts to encourage Father to see his daughter, but without success."

         The report noted that AB's maternal relatives, including her maternal great-aunt, SH, recently visited AB and PD in Hawai'i. "Maternal great aunt has expressed to this worker her concerns for [AB], and has requested to be considered for permanent placement since [Father] has not successfully reunified with his daughter. An [Interstate Compact on Placement of Children (ICPC) study] has been generated by the DHS in order to consider her request."

         5. Termination of Parental Rights, Permanent Plan, and Order Awarding Permanent Custody to the Department

         On November 2, 2016, the Department filed a Motion to Terminate Parental Rights, which was set for hearing on March 10, 2017. Attached to the Motion was a Permanent Plan dated November 1, 2016.[10] As outlined in the Plan, the Department's permanency goal for AB was for "[p]arental rights to be divested at the next court hearing" and for AB "to be under permanent placement with DHS by the next court hearing." In relevant part, the plan stated:

Child's current situation
[AB], nine-years-old, is a smart, outgoing and active young lady. She has demonstrated a lot of resiliency and is doing very well in her current placement. Prior to this placement, she had been living in a DHS general licensed resource home with her sister, PD, before they were both reunified with their respective fathers. [AB] has bonded with [KL], and considers her to be her hanai aunty. [KL] has a younger daughter by [Father], so [AB] is able to live with her half-sister, as well.
Connections
Besides living with [her paternal half-sister, TL], [AB] has visits with [her maternal half-sister, PD], as well as other extended maternal and paternal family. [AB] has not had visits with her parents for several months due to their lack of contact.
Placement
Assessment of the safety of the child's placement:
There are no safety indicators in this current placement at this time. A Safety of Placement Assessment completed on October 26, 2016, indicates this home is safe and appropriate for [AB].
Has the current placement been identified as the Child's permanent placement?
The child's current placement is a possible permanent placement, as [KL] has expressed the desire to adopt [AB] .
Is the Child's placement stable?
The placement is considered a stable placement at this time.
PERMANENCY PLANNING
A. DHS efforts to finalize permanency plan
5. Indicate all in-state and out-of-state placement options reviewed and considered.
Maternal family members[11] from the mainland participated in two Ohana Conferences, and were willing or able to provide [AB] a long-term, safe family home. An ICPC has been generated in order to explore this as an option.
7. Efforts made to include and inform [AB] of the proposed permanent plan or transition plan in a manner that was age-appropriate.
[AB] is very happy in her current placement, and has expressed to DHS that she would like to remain in [KL]'s care.

         On February 27, 2017, prior to the hearing on the Department's Motion for Termination of Parental Rights and proposed Permanent Plan, the Department filed a Safe Family Home Report.[12] The content and tone of this report differed from the November 2016 Permanent Plan in that it emphasized the willingness of AB's maternal great-aunt to adopt her, but did not mention KL's expressed desire to do the same. This report also failed to mention AB's ties to her half siblings or extended paternal family. The Department did not explain this shift in focus from KL toward AB's maternal relatives.

         On March 10, 2017, the court held a hearing on the Motion to Terminate Parental Rights. KL attended;[13] Mother and Father did not. After hearing evidence and argument, the court stated its findings, divested Father and Mother of their parental rights, appointed the Department as permanent custodian of AB, and adopted the terms of the November 2016 Permanent Plan, which appeared to favor placement with KL. The court dismissed Mother and Father as parties and set a permanency review adoption hearing for August 3, 2017.[14]

         On April 3, 2017, the court entered its written Order Awarding Permanent Custody, which contained the same findings and conclusions stated in its oral ruling, but also included Finding of Fact G, which stated, "Currently there is no responsible and competent substitute family willing and able to assume the duties of permanent custody of the child[.]"

         6. Proposal to Visit New Hampshire

         On March 17, 2017, one week after the hearing, the Department submitted a letter to the court proposing that AB visit her relatives in New Hampshire during her summer vacation. The letter requested travel from June 1, 2017 to July 7, 2017, and explained:

[AB]'s maternal great aunt and uncle, [SH] and [JH], are interested in adopting [AB]. The [Department] would like to allow the child to spend some time with them beforehand, to get better acquainted. The DHS believes this would help the child and the extended family prepare for this transition before the adoption hearing. [SH] has agreed to escort [AB] both to and from New Hampshire for this trip.
If the extended visit goes well, [SH and JH] have agreed to fly back to Hawai'i to attend the adoption hearing, then take [AB] back with them to their home in New Hampshire. The DHS was awarded Permanent Custody of [AB] on March 10, 2017.
The adoption hearing is scheduled for August 3, 2017, at 2 p.m. A home study by the DHS, via an ICPC, was completed on January 18, 2017, which found [SH's] home appropriate for placement.

         On March 22, 2017, twelve days after the termination hearing, the Department submitted a report to the court regarding AB's status. The report noted that AB's maternal great-aunt, SH, has "continued to express great desire and interest in [AB]'s well-being" and that AB's visit to New Hampshire over summer break will "allow them the opportunity to bond as well as explore possible permanent placement, if all goes well." The report also noted, however, that KL, "as well as [the father of AB's maternal half-sister, PD], have also expressed interest in adopting [AB]. All of these placements are under consideration by the DHS, and a decision is hoped to be made by the next review hearing."

         On April 3, 2017, [15] AB's GAL, Kay Iopa, submitted a status report to the court concerning the Department's travel request. The GAL stated:

On March 23, 2017, I reviewed a file stamped travel letter/order. Said document indicates I was contacted. That is true. However, the document omits the fact that I strongly opposed the travel as scheduled.
Further, I also oppose the permanent placement of TAB] in her current foster home. Repeated efforts have been made to discuss this with DHS, but DHS disregards GAL's concerns. [16]
It would appear that the Court will need to make appropriate rulings regarding travel and adoption at a contested hearing.

         On May 8, 2017, the GAL filed a Motion to Modify Travel Order or Alternatively Advance Adoption Hearing, asking that AB remain in New Hampshire after she arrives, rather than returning to Hawai'i, pending adoption by her maternal extended relatives. In the GAL's declaration, she explained in relevant part:

3. [SH] and [JH] . . . have repeatedly told me they want to adopt [AB].
4. A home study was conducted in January 2017 and [SH and JH's] home was found appropriate for placement;
5. I am aware that DHS has arranged for [AB] to visit [SH and JH] in New Hampshire for less than 30 days this summer;
6. As GAL, I find this visit is appropriate as [AB] has never been to New Hampshire and her only contact with [SH and JH] has been during their trips to Hawai'i and by telecommunication;
7. However, I have grave concerns about the travel schedule which leaves [AB] and [SH and JH] in a state of monthly cross-continental travel and uncertainty; and
8. Therefore, as GAL, I believe it is in [AB's] best interest to remain in New Hampshire till the August 3, 2017 adoption hearing or advance the adoption hearing to July 7, 2017 when [AB] is scheduled to return to Hawai'i.

         A hearing on the GAL's motion was scheduled for June 22, 2017.[17] The length of AB's trip to New Hampshire was therefore not entirely settled by the time her trip began on June 11, 2017.

         7. SH's Second Motion to Intervene

         On June 14, 2017, a few days after AB arrived in New Hampshire, SH filed a second Motion to Intervene.[18]

         The Department filed a memorandum in opposition to this motion, arguing that SH did not establish that she had a right to intervene pursuant to HFCR Rule 24(a) or permission to do so pursuant to Rule 24(b).[19] After a hearing on June 22, 2017, the court denied SH's motion.

         8. July 13, 2017 Hearing

         On July 13, 2017, the Family Court held a status hearing on the GAL's Motion to Modify Travel Order or Alternatively Advance Adoption Hearing. Shortly after the hearing began, the GAL and the Department stated that they both now agreed to change AB's foster placement to New Hampshire and continue the adoption hearing. KL, who was in attendance, then caught the court's attention and indicated she would like to speak. Over the Department's and GAL's objections, the court allowed KL to provide her input on AB's situation based on KL's status as AB's resource caregiver.

         KL presented a statement emphasizing her prominent role in AB's life, "not only as a resource caregiver but as a hanai auntie, stepmom, and mother of her biological paternal half sibling, [TL], who she currently resides with." KL stated that "[AB] also sees paternal family regularly, aunties, uncles, cousins, as well as my family who have hanaied her as their own." KL went on to say that she felt "as if nobody is looking into [AB's] life here and now and exactly how much she is thriving but instead assuming her life will be better in New Hampshire." KL asked that the family court "make things pono with this case" and requested "a restraining order be placed on this case to keep things status quo, have [AB] [ ] flown back to Hawaii until this matter gets properly addressed by the court and provide me time to seek adequate legal counsel." She further stated that she "provided for and love[s] [AB] and want[s] to continue to love and provide for [her] through adoption." KL stated:

[AB] was told, as was I, by [DHS Case Manager Michelle Starosky], that she would be in New Hampshire for a month to allow her time to visit and get to know them, to see if there was a possibility she may want to live there ... I realized I had been outright lied to, manipulated and suppressed[.]

         When KL finished, the family court stated, "Okay. Thank you for that input." The court did not rule on or further acknowledge KL's requests, nor did it orally state any findings or issue any orders.

         9. July 31, 2017 Order Continuing Permanent Custody and Changing AB's Placement to New Hampshire

         On July 31, 2017, the Family Court entered an Order Continuing Permanent Custody, which modified AB's placement from KL's home to the State of New Hampshire, with SH and JH. The Order did not mention KL's requests from the hearing.[20]

         10. Petitions for Adoption

         On August 21, 2017, the Department filed a Petition for Adoption of AB by SH and JH, FC-A No. 17-1-0029. The hearing was ...


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