Doe, In Interest of
| Decision Date | 04 June 1987 |
| Citation | 784 P.2d 873,7 Haw.App. 547 |
| Parties | In the Interest of Jane DOE, born on |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. Hawaii's Child Protective Act, Hawaii Revised Statutes (HRS) Chapter 587 (1985 and Supp.1988), does not conflict with HRS § 571-46 (1985) on the question of the priorities applicable when awarding temporary
foster custody, foster custody, and permanent foster custody of a child.
2. Under HRS § 587-2 (Supp.1988), when the Department of Human Services of the State of Hawaii (DHS) is the family court-appointed foster custodian of a minor child, DHS does not need the family court's approval before removing the child from the child's Hawaii foster caretakers and placing the child with other Hawaii foster caretakers.
3. When DHS is the family court-appointed foster custodian of a minor child, DHS's decision as to what custodial arrangements are in the child's best interest is neither a matter of law nor discretion. It is an ultimate finding of fact which must be adequately supported by preliminary findings of fact.
4. Under HRS § 587-2, when DHS is the family court-appointed foster custodian of a minor child, DHS may remove the child from the child's foster caretakers without first finding that the foster caretakers are not fit and proper persons or that their home is not stable and wholesome.
5. Under HRS § 587-2, when DHS is the family court-appointed foster custodian of a minor child, DHS may remove the child from the child's foster caretakers solely on the basis of its ultimate finding of fact, adequately supported by preliminary findings of fact and substantial evidence, that such removal is in the child's best interests.
Laurie Arial Tochiki, Waipahu, for appellant.
Kenneth E. Enright, Jay K. Goss, Deputy Attys. Gen., Honolulu, for appellee.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
The court-appointed Guardian Ad Litem (GAL) for Jane Doe (Doe), born on June 4, 1987, appeals the family court's October 20, 1988 Order Allowing the Department of Human Services to Remove Minor from Foster Home (October 20, 1988 Order) and November 9, 1988 Order Denying Motion For Reconsideration (November 9, 1988 Order). We affirm.
The issues and our answers are as follows:
I. Does Hawaii's Child Protective Act, Hawaii Revised Statutes (HRS) Chapter 587 (1985 and Supp.1988), conflict with HRS § 571-46 (1985) on the priorities applicable when awarding temporary foster custody, foster custody and permanent foster custody of a child? Our answer is no.
II. When the Department of Human Services of the State of Hawaii (DHS) is the family court-appointed foster custodian of a minor child, does DHS need family court approval before removing the child from the child's Hawaii foster caretakers and placing the child with other Hawaii foster caretakers? Our answer is no.
III. When DHS is the family court-appointed foster custodian of a minor child, is DHS's decision that it serves the best interests of the child to remove the child from the child's Hawaii foster caretakers and place the child with other Hawaii foster caretakers a matter of law, a finding of fact or an exercise of discretion? We conclude that it is an ultimate finding of fact.
IV. When DHS is the family court-appointed foster custodian of a minor child, may DHS remove the child from the child's foster caretakers without first finding that the foster caretakers are not fit and proper persons or that their home is not stable and wholesome? Our answer is yes.
V. When DHS is the family court-appointed foster custodian of a minor child, may DHS remove the child from the child's foster caretakers solely on the basis of its ultimate finding of fact, supported by its preliminary findings of fact and substantial evidence, that such removal is in the child's best interests? Our answer is yes.
VI. When the family court decided that DHS's ultimate finding of fact (that such removal was in the child's best interests) was not clearly erroneous, was its decision right or wrong? Upon a review of the record, we conclude that it was right.
On June 5, 1987 the Honolulu Police Department took Doe into protective custody. On June 9, 1987 DHS petitioned the family court pursuant to HRS § 571-11(9) (1985) and Chapter 587 for court orders serving Doe's best interests, including the immediate temporary termination of parental physical custody, an award of foster custody to DHS, and possible permanent termination of parental rights leading to an adoption. On June 12, 1987 the family court appointed GAL and granted DHS's request for a prehearing award of temporary foster custody. On June 26, 1987 DHS placed Doe in Foster Caretakers' temporary foster care.
On September 14, 1987 the family court entered an Order Establishing Jurisdiction and Awarding Foster Custody which states, in relevant part, as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. That the above-named child comes under the exclusive jurisdiction of the Family Court pursuant to HRS § 571-11(9) and § 571-11, as amended;
2. That foster custody over the child is awarded to the Department of Human Services[.]
On December 4, 1987 the family court, noting that Doe's natural parents "agreed to permanent custody to DHS with subsequent adoption", orally awarded Doe's "permanent custody" to DHS, and set a Permanent Plan review hearing for May 23, 1988.
On May 18, 1988 Foster Caretakers filed a motion to intervene which the family court subsequently granted.
At the Permanent Plan review hearing on August 30, 1988 DHS noted its doubt about the appropriateness of Foster Caretakers' reaction to certain events which occurred in their home prior to Doe's placement with them. DHS did not allege that Foster Caretakers were unfit and improper persons or that their home was unstable and unwholesome. DHS stated in writing as follows:
In the instant case [Foster Caretakers] desired to adopt [Doe]. The testimony has shown that the social workers involved did give their request serious consideration.
* * * * * *
The DHS is not saying that [Foster Caretakers] were neglectful but rather that in terms of looking at lifetime placement for [Doe] a better home has been found. * * * [T]he DHS does not believe that this is the best possible home for [Doe] and cannot consent to the adoption.
* * * * * *
[T]he decision of the best adoptive family for [Doe] came out in favor of the identified adoptive home with her two brothers.
The DHS has identified an adoptive home for [Doe] and this family in addition to having none of the problems or potential for problems that [Foster Caretakers'] family has, is going to be adopting [Doe's] two natural brothers. The DHS is committed to placing children with families whenever possible. That policy is in harmony with the Child Protective Act. When not possible to place with the natural parents, the DHS then tries to place children with their siblings or relatives.
* * * * * *
The DHS agrees with the Guardian Ad Litem ... that [Foster Caretakers'] have provided [Doe] with a stable and caring environment, but the DHS is now looking for a home that can provide for the child's long-term psychological and emotional needs, in addition to meeting her basic needs. The DHS is grateful to the [Foster Caretakers] family and does not wish to jeopardize its relationship with them, but its first priority must always be with the child and what is in her best interests. The DHS recognizes that there may develop close emotional ties between foster parents and the child and that may hinder the child's adjustment in a permanent home, but that does not mean that the child should remain in the home if a better placement has been found.
* * * * * *
In summary, the DHS has been granted the authority to find the best possible home for [Doe] and is committed to doing just that. The DHS stands firm in its position that [Foster Caretakers'] family is not the best adoptive home for this child and that the child should be placed with the approved adoptive home without further delay. * * * The DHS respectfully requests that this Honorable Court allow it to place [Doe] in the approved adoptive home with her two brothers.
Thereafter, the family court entered its October 20, 1988 Order authorizing DHS to transfer Doe from Foster Caretakers to the proposed adoptive family and its November 9, 1988 Order denying Foster Caretakers' September 19, 1988 Motion for Reconsideration.
On November 28, 1988 the family court entered an Order Awarding Permanent Custody and Establishing a Permanent Plan in which it, inter alia, terminated Doe's mother's parental rights (but not all of her parental obligations) and appointed the Director of DHS as Doe's permanent custodian, subject to the child's father's rights. Later the same day, the family court approved and ordered a Stipulation Awarding Permanent Custody and Establishing a Permanent Plan which, inter alia, terminated Doe's father's parental rights (but not all of his parental obligations). GAL then filed a timely notice appealing the October 20, 1988 Order and the November 9, 1988 Order.
The family court's January 6, 1989 Findings of Fact read, in relevant part, as follows:
1. [Doe] is the natural child of ... (mother) and ... (father). [Doe] was born on June 4, 1987.
2. [Doe's] half brother ... died on August 6, 1986 allegedly due to physical abuse and neglect[.] [Doe's] two (2) natural brothers and half-sister were removed from the [Natural Parents'] home on August 6, 1986, and placed under police protective custody.
* * * * * *
4. On June 5, 1987, [Doe] was taken into police protective custody as she was assessed to be in imminent risk of harm because her parents['] ... home, was deemed to be unsafe.
5. That on June 26, 1987, [Doe] was placed in the home of [Foster Caretakers]. They had been speciallly [sic] licensed as...
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Case Notes
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