In re AK
| Decision Date | 18 April 2022 |
| Docket Number | CAAP-21-0000285 |
| Parties | IN THE INTEREST OF AK AND SK (FC-S NO. 18-00112) IN THE INTEREST OF MK (FC-S NO. 18-00241) IN THE MATTER OF ADOPTION OF A FEMALE CHILD, Born on 00/00/000 A FEMALE CHILD, Born on 00/00/000 A MALE CHILD, Born on 00/00/000 by DR AND MR, A Married Couple (FC-A NO. 21-1-6005) IN THE MATTER OF ADOPTION OF A FEMALE CHILD, Born on 00/00/000 A FEMALE CHILD, Born on 00/00/000 A MALE CHILD, Born on 00/00/000 by CG AND AG, Husband and Wife (FC-A NO. 20-1-6137) |
| Court | Hawaii Court of Appeals |
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
Francis T. O'Brien,
for Intervenors/Petitioners/Respondents-Appellants.
for Petitioner/Respondent- Appellee DEPARTMENT OF HUMAN SERVICES.
Intervenors/Petitioners/Respondents-Appellants MR (sometimes referred to as Aunt) and DR (together, Appellants) appeal from the Family Court of the First Circuit's (Family Court)[1] April 6, 2021 Orders Concerning Child Protective Act entered in FC-S No. 18-00112 and FC-S No. 18-00241 (TPR Cases), and its April 6, 2021 Orders filed in FC-A No. 20-1-6137 and FC-A No. 21-1-6005 (Adoption Cases), granting Petitioner/Respondent-Appellee Department of Human Services' (DHS) petition for adoption by Resource Caregivers (RCGs) CG and AG to adopt AK, SK, and MK (Children), and denying Appellants' petition to adopt the Children.
In May of 2018, DHS received reports of physical neglect of AK and SK, who were then 3-years-old and less than 1-year-old. Their parents had a history of drug abuse and homelessness, and there had been previous reports of potential neglect. On May 14, 2018, DHS filed a Petition for Temporary Foster Custody in FC-S No. 18-00112. Father stipulated to jurisdiction and foster custody, and at Father's request, DHS agreed to initiate an Interstate Compact Placement of Children (ICPC) review of Father's family members on the mainland for placement of AK and SK. Mother was not served, and she did not appear at the hearing, although DHS represented that they had been in telephone contact with Mother and she was verbally informed about the hearing. AK and SK were placed in temporary foster custody in the care of the RCGs shortly thereafter, after an initial resource care giver asked that they be moved to another foster home because AK reportedly attempted to harm another child in the initial home.
MK was born prematurely in September of 2018, and placed in a neonatal intensive care unit. His meconium later tested positive for marijuana and methamphetamines. On October 3, 2018, DHS filed a Petition for Temporary Foster Custody of MK in FC-S No. 18-00241. Although Mother and Father were apparently not yet served, the petition was granted on October 5, 2018, and MK was placed in the RCG's home with his sisters.
At a November 26, 2018 hearing, Mother stipulated to jurisdiction and foster custody of the Children in both TPR Cases, and Father stipulated to jurisdiction and foster custody of MK in FC-S No 18-00241. Mother indicated if reunification is not possible, then she preferred the Children be permanently placed with family members, and she requested that DHS initiate an ICPC of Aunt, who is Father's sister. DHS Social Worker Erin Asato (Asato) reported that, based on her emails with paternal grandmother, she believed that Aunt supported the current placement and was seeking to take on foster custody placement only if the RCGs could not continue. At this point, Mother and Father's parental rights had not been terminated. The Family Court ordered Asato to contact Aunt directly to ask if she was willing to be a permanent placement and to initiate the ICPC if she agreed.
Mother died of a drug overdose in August of 2019.
On January 23, 2020, DHS moved to terminate Father's parental rights with a goal of adoption by the RCGs. On February 23, 2020, Aunt emailed Asato stating that she "wants to take the his [sic] kids" and that she had "emailed over and over to get information with no reply." DHS then initiated the ICPC for Appellants' home, which was approved on July 13, 2020. On April 7, 2020, the Family Court granted Appellants' motions to intervene in FC-S No. 18-00112 and FC-S No. 18-00241, where Appellants indicated they wished to adopt the Children.
On July 28, 2020, the Family Court accepted Father's stipulation to terminate his parental rights, approved DHS's permanent plan with the goal of adoption by the RCGs, and set trial on the issue of permanent placement.
On October 8, 2020, on behalf of the RCGs, DHS filed an adoption petition in FC-A No. 20-1-6137 designating RCGs as the prospective adoptive parents for the Children. On January 8, 2021, Appellants filed a competing adoption petition in FC-A No. 21-1-6005. The same day, DHS filed a Notice of [DHS's] Withholding of Consent to [Appellants'] Adoption Petition (Notice of No Consent) in FC-A No. 21-1-6005, stating that it was withholding consent to Appellants' adoption of the Children because DHS had assessed that it was in the Children's best interests to be adopted by the RCGs.
After a consolidated trial on permanent placement and the competing adoption petitions, the Family Court denied Appellants' petition and granted DHS's petition. In its April 6, 2021 Order on DHS's petition, the Family Court found that: (1) the Children are adoptable under Hawaii Revised Statutes (HRS) §§ 578-1 (2018) and 578-2 (2018); (2) the Children are physically, mentally and otherwise suitable for adoption by CG and AG; (3) CG and AG are fit and proper persons and financially able to give the Children a proper home and education; and (4) the adoption of the Children by CG and AG is in the best interests of the Children. In its April 6, 2021 Order on Appellants' petition, the Family Court found that: (1) the Children are adoptable under HRS §§ 578-1 and 578-2; (2) the Children are physically, mentally and otherwise suitable for adoption by MR and DR; (3) MR and DR are fit and proper persons and financially able to give the Children a proper home and education; but (4) the adoption of the Children by MR and DR is not in the best interests of the Children.
On May 21, 2021, the Family Court filed 46 pages of Findings of Fact (FOFs) and Conclusions of Law (COLs) further explicating its placement and adoption rulings in the TPR Cases and the Adoption Cases.
Appellants raise six points of error on appeal, contending that the Family Court erred: (1) in COL 21, when it held that in the context of an adoption, the term "best interests of the child" can never mean the "better interests of the child;" (2) in COL 23, when it concluded that kinship should not be considered as a substantial factor in determining which placement is in the Children's best interests; (3) in FOFs 194 through 197, and COLs 28, 30, and 34, when it found that DHS had not unreasonably withheld its consent to the adoption of the Children by Appellants; (4) in FOFs 170-173, 200-201, and COLs 21 and 42, when it found that the RCGs had satisfied the requirement in HRS § 578-8(a)(3) that the petitioners in an adoption must be financially able to give the children a proper home and education; (5) in FOFs 174-176, 193-194, 199, 211, and 214, and COLs 20-22, and 43, in its application of the factors listed in HRS § 571-46(b) (2018) (best-interest-of-the-child factors) by treating DHS's permanent placement recommendation in a manner that is inconsistent with the Hawai'i Supreme Court's opinion in In re AS, 132 Hawai'i 368, 322 P.3d 263 (2014); and (6) in FOFs 135-136, 138-139, 143-144, 146-147, 174-176, 186, 194, 200, 202, 210-215, and COLs 38 and 40, when it treated the length of the Children's placement with the RCGs as creating a presumption that the Children should be placed with them. Appellants submit that the Family Court's decision is clearly erroneous and should be reversed.
Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Appellants' points of error as follows:
Adoption proceedings are governed by HRS chapter 578. See In re HA, 143 Hawai'i 64, 75, 422 P.3d 642, 653 (App. 2017). "[No] decree of adoption may be entered unless all of the HRS § 578-8(a) requirements have been satisfied." Id. at 78-79, 422 P.3d at 656-57. HRS § 578-8(a) (Supp. 2019) provides, in part:
HRS § 578-2(a) provides, in part, that
"DHS as permanent custodian of a child, has the discretion in the first instance to determine where and with whom a child shall live." In re AS, 132...
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