In re Interest of R Children

• Decision Date: 13 December 2019
• Docket Number: SCWC-16-0000441
• Parties: In the INTEREST OF R CHILDREN
• Court: Hawaii Supreme Court

454 P.3d 418

In the INTEREST OF R CHILDREN

SCWC-16-0000441

Supreme Court of Hawai‘i.

DECEMBER 13, 2019

Randal I. Shintani, Honolulu, for petitioner/father-appellant

Julio C. Herrera, Ian T. Tsuda, and Patrick A. Pascual, Deputy Attorneys General, for respondent-appellee Department of Human Services

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

OPINION OF THE COURT BY NAKAYAMA, J.

This case contemplates the interaction between two similar statutory provisions that provide for the termination of parental rights. On December 1, 2016, the Family Court of the First Circuit (family court) terminated Petitioner/Appellant Father's parental rights to his child (KK) pursuant to Hawai‘i Revised Statutes (HRS) § 587A-33 (Supp. 2015), a provision of the Child Protective Act (CPA) (the CPA Provision). Father appealed. The Intermediate Court of Appeals (ICA) observed that the CPA Provision requires the family court to find that the "proposed permanent plan is in the best interests of the child" before terminating a parent's parental rights. HRS § 587A-33(a)(3). The ICA held that the family court's termination of Father's parental rights was not permitted by the plain language of the CPA Provision because the family court found that Respondent/Appellee Department of Human Services' (DHS) permanent plan for KK was not in KK's best interests. The ICA nevertheless affirmed the family court's termination of Father's parental rights under a provision of the family court statutes, HRS § 571-61(b)(1)(E) (Supp. 2016) (the Family Court Provision).

On application for writ of certiorari, Father asks whether the ICA erred in substituting the Family Court Provision for the CPA Provision as the basis for terminating his parental rights.

We hold that the ICA erred in substituting the Family Court Provision for the CPA Provision as the basis for affirming the family court's termination of Father's parental rights when the CPA Provision contains a requirement not present in the Family Court Provision.

Accordingly, we vacate the ICA's judgment on appeal and remand to the family court for further proceedings.

I. BACKGROUND

A. Family Court Proceedings¹

Mother has six children. Father is the father of the youngest child, KK, who was born on December 20, 2012.² KK was three years old at the time DHS moved to terminate Father's parental rights. At the time of the termination of parental rights hearing, Mother was no longer in a relationship with Father. Mother obtained a Temporary Restraining Order (TRO) against Father on February 10, 2014.

On February 18, 2014, DHS filed a Petition for Family Supervision over five of the children,³ including KK, after learning that, in 2013, Father had kicked one of Mother's older children in the chest and punched Mother in the head when she tried to pick up the child. In DHS's petition, DHS stated that "[t]he behaviors of [Father] are violent, threatening violence, and/or out of control." DHS also remarked that "[Father] is believed to also have substance abuse issues (alcohol, marijuana and Ice)[.]" DHS stated that Mother could not adequately supervise or protect the children from harm, noting the extensive history of domestic violence in Mother and Father's relationship and between Mother and the father of her older children. However, DHS opined that Mother "can provide a safe family home for the children with the assistance of a service plan."

Because the family court found that "there [was] an adequate basis to sustain the petition[,]" the family court ordered Mother and Father to follow a service plan created by DHS. The February 2014 service plan directed Mother to undergo a psychological evaluation, domestic violence/anger management education, comprehensive counseling and support services, and enhanced healthy start services.⁴ The February 2014 service plan directed Father to undergo substance abuse treatment, random urinalysis, domestic violence/anger management education, psychological evaluation, and comprehensive counseling and support services. The February 2014 service plan also directed both Mother and Father to cooperate with a DHS social worker.

Over the course of the following seventeen months, DHS created four subsequent service plans. Each service plan indicated that, if Mother and Father were able to "successfully complete and utilize the services that [were] outlined in [the] service plan" and demonstrate that KK was "no longer at risk of abuse or neglect in the family home[,]" DHS could recommend that the case be closed. However, each subsequent service plan warned Mother and Father again that their "parental and custodial duties and rights ... may be terminated ... unless [they were] willing and able to provide [KK] with a safe family home within the reasonable period of time specified in [the] family service plan."

On July 23, 2015, DHS filed a motion in the family court to terminate Mother and Father's parental rights to KK and award permanent custody of KK to DHS (Motion to Terminate). DHS based its motion on the ongoing domestic violence in Mother and Father's relationship, Father's continued substance abuse, and Mother and Father's failure to "change to be protective of their children." DHS concluded that Mother and Father were unable, now or in the foreseeable future, to provide a safe home without the assistance of a court-ordered service plan. In the motion, DHS proposed a permanent plan which would place KK with adoptive parents after DHS gained permanent custody of KK.⁵

B. Termination Hearings

Hearings on the Motion to Terminate took place on March 8, 2016 and April 4, 2016.

Mother testified on April 4, 2016. Mother testified that she loved KK and that KK had bonded with her and called her "Mommy" during their supervised visits. Mother testified that she had a good record of attending her supervised visits with KK. Mother also testified that if DHS instructed her not to allow contact between KK and Father, she would comply. Mother stated that her paycheck from her job at a restaurant would support rent and utilities in a low-income housing apartment.

Father also testified on April 4, 2016. Father testified that he had bi-weekly supervised visits with KK and that he consistently attended those visits. Father stated that the visits were pleasant, but that KK was "spoiled." Father testified that these proceedings began "[b]ecause of [his] anger issues, drug use, and abuse[,]" but stated that "[i]t's all good now" because he was working more and was subjected to random drug tests at work. Father admitted, however, that there had been a period during which he consistently missed drug tests. Father also stated that he had lost parental rights to another child with a different mother. Father testified that 60 percent of his paycheck went to child support for four children. Father stated that he wanted to have more visits with KK, but that he understood one of the reasons he was unable to have more visits was his inconsistency with drug testing.

Annette Shanks (Shanks), a DHS social worker assigned to KK's case in 2014, testified on behalf of DHS on March 8, 2016. Shanks testified that DHS believed neither Mother nor Father were currently willing or able to provide a safe family home for KK, even with the assistance of a service plan, and that it was not reasonably foreseeable that they would be able to do so within a reasonable period of time. DHS's permanent plan for KK envisioned his adoption by his resource caregivers. Shanks testified that this plan was in KK's best interests because he was very close with his resource caregivers, who wanted to adopt him. The family court found Shanks's testimony credible.

The family court issued its "Order Terminating Parental Rights of [Father] and Order Regarding Insufficient Basis Currently to Terminate Parental Rights of [Mother]" on May 23, 2016 and issued its Findings of Fact, Conclusions of Law, and Order on December 1, 2016.⁶ Pursuant to HRS § 587A-33,⁷ the CPA Provision, the family court found that "the evidence presented at trial establishes that there is clear and convincing evidence that [Father's] parental rights should be terminated, however, as to [Mother], there is insufficient evidence to terminate her parental rights, at this time." The family court also found that DHS's proposed permanent plan of placing KK in adoption was not in KK's best interests. The family court rejected DHS's permanent plan to place KK in adoption in order to "afford Mother an opportunity for reunification with [KK] if Mother is able to comply with the requirements set forth [by DHS]."

C. ICA Proceedings

Father filed a notice of appeal from the Order Terminating Parental Rights on May 31, 2016. In his opening brief, Father argued, inter alia, that the circuit court's termination of Father's parental rights after finding that DHS's permanent plan was not in KK's best interests "is contrary to the statutory provisions of Section 587A-33(b) [the CPA Provision.]"

The ICA agreed. The ICA held that because the family court did not find the permanent plan of adoption to be in KK's best interests, the requirements of the CPA Provision were not met and the CPA Provision therefore provided no basis for terminating Father's parental rights. In the Interest of R Children, No. CAAP-16-0000441, 2018 WL 4346884 (App. Sept. 12, 2018) (mem.). Nevertheless, the ICA held that the family court did not err in terminating Father's parental rights, because HRS § 571-61(b)(1)(E),⁸ the Family Court Provision, provides for the termination of parental rights without regard to a permanent plan, and "[t]he legislative history is clear that HRS chapter 587 was not intended to displace the provisions of HRS chapter 571, but rather to incorporate its provisions into a unified proceeding." (Citing S. Stand. Comm. Rep. No. 537-86, in 1986 Senate Journal, at 1023.) The ICA therefore concluded that "[h]aving met the standard necessary for termination under [the CPA Provision] ... termination...