84 Hawai'i 41, Doe, In Interest of
| Decision Date | 22 May 1976 |
| Citation | 928 P.2d 883 |
| Parties | 84 Hawai'i 41 In the Interest of Jane DOE, Born on |
| Court | Hawaii Supreme Court |
Jay K. Goss and John Campbell, Jr., Deputy Attorneys General, on the briefs, Honolulu, for appellant Department of Human Services.
Michael A. Tongg, guardian ad litem, on the briefs, Honolulu, for minor-appellee.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
In these two appeals, 1 the Department of Human Services (DHS) of the State of Hawai'i appeals from several collateral orders of the family court of the first circuit entered during the course of adjudicating the status of Jane Doe (Minor). On appeal, the DHS contends that the family court: (1) erred in finding that the home of the Minor's father was not safe; and (2) abused its discretion in awarding DHS temporary legal custody and in making interim orders that, inter alia, directed the DHS to pay foster board payments and other costs related to the care of the Minor.
We disagree with the DHS's first point of error because the family court's finding of fact that the home of the Minor's father was unsafe is not clearly erroneous. We agree with the DHS's second point of error that the family court did not have the power to award temporary legal custody pursuant to Hawai'i Revised Statutes (HRS) § 571-48. However, because we view the family court custody award as being one of temporary "foster" (as opposed to "legal") custody, we affirm, in part, the family court's interim orders requiring the DHS to pay for the Minor's care; we reverse those orders that require the DHS to pay foster board payments for periods after the Minor's eighteenth birthday.
On December 23, 1993, pursuant to HRS chapter 571, family court probation officer Christine Y. Ikehara filed a petition (runaway petition) alleging that:
On or about October 11, 1993, in the City and County of Honolulu, State of Hawaii[, the Minor] was beyond the control of her parent in that she left home without permission and remained away until November 3, 1993, which behavior brings the said minor within the purview of HRS Section 571-11(2)(B) and HRS Section 577-6.
On February 2, 1994, three months and twenty days shy of the Minor's eighteenth birthday, a hearing was held on the petition before the family court. Present at the hearing were Ikehara, Minor, Minor's father, Minor's guardian ad litem (GAL), 2 Patsy Takemura (Minor's counsel), Jacob Pakele (Minor's boyfriend), and Jensen Pakele (Jacob's father). Because the DHS was not given prior notice of the hearing, a DHS representative did not attend the hearing.
At the hearing, the court inquired of the Minor's father whether he thought it was in either the Minor's or his best interests that the Minor be returned to his home. He answered "no," stating that he wanted to see the Minor placed in a detention home "temporarily until we can have a discussion and get this straightened out because this [ (the Minor's running away) ] is not going to stop." The court then questioned Jensen Pakele, who testified that the Minor had been staying at his home since the beginning of January 1994. During that time, the Minor had been attending substance abuse meetings twice weekly, although she was not attending school.
The Minor's counsel made the following request:
Your Honor, pursuant to our pre-chamber conference I believe Ms. Ikehara and Mr. Pascual as well as myself on behalf of the minor [are] asking that the DHS become involved in the case and that they be allowed--or they be ordered to be temporary legal guardian of the minor. But in the meantime we would ask that Mr. Pakele have custody or supervision over [the Minor] and that she be--continue to reside with him on the Big Island.
Notwithstanding the DHS's absence, the court ordered that:
DHS [is] awarded temporary legal custody.[ 3] Minor shall contact [the Department of Education] on [the] Big Island within one week to resume her education or file 4140 Form if she will be employed fulltime. Minor shall continue to attend [Narcotics Anonymous] & [Alcoholics Anonymous] meetings twice a week. Temporary custody awarded to Mr. Pakele.
After ruling, the court decided against holding an order to show cause (OSC) hearing to enable the DHS to challenge the court's award of temporary legal custody of the Minor to the DHS. The court reasoned that it was not required by statute or case law to hold an OSC hearing and that such hearing would inconvenience the parties, many of whom lived and worked on the island of Hawai'i. Thus, the court indicated that should the DHS wish to have an OSC hearing, it could so move.
The court's order was entered on February 2, 1994 and contained a "cc:" to the DHS. 4
On April 15, 1994, the Minor's GAL filed a motion for a show cause hearing as to why sanctions should not be imposed against the DHS (motion to show cause). The motion set forth verified facts concerning the DHS's failure to (1) pay foster board payments to Jensen Pakele and (2) provide medical insurance coverage and clothing allowances for the Minor. The motion also requested make-up educational services for the four months it took the DHS to enroll the Minor in school. A copy of the motion was served on the DHS.
A hearing on the motion to show cause was held on April 26, 1994 and several DHS representatives attended: deputy attorney general Jackie desMarets, representing the DHS; DHS case supervisor Ralph Aona; and DHS social worker Yvonne Samia. During the hearing, Aona acknowledged receipt of the February 2, 1994 court order, but stated that the DHS had not been present at the hearing and had not taken any action in connection thereto. The DHS's position was that it should not be forced to pay for the Minor's placement on the Big Island because it would have returned her to her father's home insofar as it did not consider the home to be unsafe, notwithstanding the family court's finding to the contrary.
The court reprimanded the DHS for its inaction and noted that the DHS should have contacted the deputy attorney general and filed a motion for clarification. Although the court recognized that responsibility for the situation did not lie exclusively with the DHS and asserted that "[t]his is partially the court's problem," it nonetheless criticized the DHS, stating:
[Y]ou folks have a duty to follow through when you're given temporary legal custody like this. If you don't want it or think there's something wrong with it you folks got to bring it back to court so that it can be clarified and--and something done about it. But it just can't be kind of put in a holding pattern.
The DHS thereafter requested a continuance for the purpose of exploring, inter alia, payment of the Minor's costs. The court granted the request, but warned the DHS that there was a "strong likelihood" that it would order the DHS to fulfill the GAL's requests for, among other things, foster board and clothing allowance payments. 5 The court admonished the DHS to "rectify the situation."
As to the DHS's goal of reuniting the Minor with her father, the court agreed to return her to her father's home, but only after receipt of an updated report on the Minor's home situation and the current status of her father's behavior. 6 Aona agreed to provide the court with "safe home guidelines" (SHG).
On May 9, 1994, the court held a further hearing on the GAL's motion to show cause. At the hearing, the DHS argued that, notwithstanding the court's February 2, 1994 order, it was the family court and not the DHS that became the Minor's legal custodian on that day. The DHS further argued that, because the Minor's case did not involve safety issues, "the family home is the home that the child should have been in." After hearing arguments from all parties, the court reiterated its belief that the DHS could have taken action on the original February 2, 1994 order by "bringing it back to court and making [the judge] clarify exactly what he meant."
The court subsequently granted the motion, but declined to sanction the DHS. Instead, the court, in a written order filed on May 16, 1994, ordered that
(1) DHS ... shall pay foster board payments to Mr. Pakele commencing February 2, 1994 until such time as the trial on the runaway is resolved.
(2) DHS shall reimburse foster parents (M/M Pakele) for all costs, travel and all other costs (clothing, medical, dental) related to the care of said child.
(3) DHS to work with the Department of Education to see if Minor can receive exemption for summer school ... otherwise DHS shall pay the $125.00 summer education course fee.
(4) DHS shall reimburse the GAL for all costs for travel, which cost shall be itemized and submitted to DHS. Otherwise, GAL attorney fees shall be paid by Family Court.
(5) The runaway trial is taken off calendar until moved on by any party.
(6) All other orders not inconsistent with this order are continued until further order of the court or until the runaway charge is resolved.
On May 27, 1994, the DHS filed a timely motion for reconsideration. The court held a hearing on June 15, 1994. After hearing arguments from both parties, the court denied the motion and explained that:
If you [ (the DHS) ] didn't understand [the order], you should have contacted [the Attorney General] directly and not just sit on this thing until the guardian ad litem comes back and has to make all these requests because of the silence, the acquiescence and the nothing that was done from the time they got the order until [the GAL] makes the motion. That therein lies the problem.
....
By your silence and acquiescence you folks had responsibility over this child. You cannot come now months later and say, but Judge we didn't understand and, you know, it's not our problem. No.
....
So, number one. Too little too late.
Number two. The Judge didn't make the ruling in the vacuum, the home was not safe. I confirmed that...
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