In re As

• Citation: 322 P.3d 263,132 Hawai'i 368
• Decision Date: 14 February 2014
• Docket Number: No. SCWC–11–0001065.,SCWC–11–0001065.
• Parties: In the Interest of AS.
• Court: Supreme Court of Hawai'i

132 Hawai'i 368

322 P.3d 263

In the Interest of AS.

No. SCWC–11–0001065.

Supreme Court of Hawai‘i.

Feb. 14, 2014.

Patrick A. Pascual, Honolulu, 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 of the Court by 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, 506, 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 Hawai‘i 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 Hawai‘i 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 Hawai‘i 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 Aunt]'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...