In re Doe
| Decision Date | 20 March 2003 |
| Docket Number | No. 24923.,24923. |
| Citation | 101 Haw. 220,65 P.3d 167 |
| Parties | In the Interest of Jane DOE, Born on June 16, 1994, a minor. |
| Court | Hawaii Supreme Court |
John Y.U. Choi, deputy attorney general, on the briefs, for the appellant Department of Human services.
Tae Won Kim, for the appellee guardian ad litem for the minor child.
The appellant Department of Human Services (DHS) appeals from: (1) the order of the district family court of the first circuit, the Honorable John C. Bryant presiding, filed on December 6, 2001, (a) granting the appellee guardian ad litem's (GAL's)1 motion for immediate review, filed on November 29, 2001, (b) granting DHS's oral motion for foster custody of Jane Doe (Jane), (c) ordering that, except upon a showing of imminent physical harm, Jane not be removed from her current placement without a court order, and (d) ordering that DHS render foster care board payments to Jane's maternal aunt (Aunt); and (2) the family court's order, the Honorable John C. Bryant also presiding, filed on January 10, 2002, denying DHS's motion to reconsider, alter, or amend the order issued on December 6, 2001 or, in the alternative, for a stay of the order pending an evidentiary hearing [hereinafter, "the motion for reconsideration"].
On appeal, DHS contends (1) that the family court exceeded its statutory authority under Hawai`i Revised Statutes (HRS) § 587-71 (Supp.2002)2 by awarding foster custody of Jane to DHS but simultaneously prohibiting DHS from exercising its statutory placement authority as a foster custodian and (2) that the family court exceeded its statutory authority by ordering DHS to make foster care board payments to Aunt, an unlicensed caretaker.
We agree with DHS that the family court exceeded its statutory authority under HRS § 587-71 by ordering DHS to place Jane in an unlicensed foster family boarding home and render foster care board payments to Aunt. Accordingly, we vacate the family court's orders, filed on December 6, 2001 and January 10, 2002, and remand this matter for further proceedings consistent with this opinion.
The present matter involves the foster custody of Jane, Mother's seven-year-old daughter. On July 7, 2001, DHS received a report from Mother, alleging that Jane had been sexually abused by her father. On August 2, 2001, DHS interviewed Jane and her six-year-old brother (Brother), at which time Jane confirmed the allegation of sexual abuse by her father; Brother also disclosed that Jane had touched his penis with her hands while they were sleeping together in the same bed. On August 9, 2001, DHS interviewed Mother at Mona Lisa Santos's residence, where Mother and her children occasionally resided.3 Mother requested that DHS place Jane in a foster home due to her uncontrollable behavior—i.e., Jane's aggression toward Brother, dishonesty, and general disobedience. Upon DHS's recommendation that Mother place Jane with a relative-care-taker, Mother arranged for Jane to reside with her paternal grandparents and assured DHS that she would seek counseling for Jane and herself to improve their mother-daughter relationship. On August 11, 2001, Jane began to live with her grandparents but soon returned on August 13, 2001, per Mother's request, after Jane's grandfather refused to permit Jane to attend psychological counseling.
In September 2001, Mother again requested that DHS locate a therapeutic foster home for Jane because she could no longer "handle [Jane's] behaviors." On October 23, 2001, DHS filed a petition for family supervision,4 pursuant to HRS §§ 571-11(9) (1993),5 587-11 (1993),6 and 587-2 (1993).7 The petition alleged, inter alia, (1) that Jane had been sexually abused by her father, (2) that Jane had sexually abused Brother, and (3) that there was a substantial threat of harm to Jane and Brother due to domestic violence between Mother and Santos. The family court conducted a hearing on the matter on October 29, 2001, at which time the family court took jurisdiction over Jane's case but continued the hearing to November 2, 2001, after Mother and Santos failed to appear in court as scheduled. On November 2, 2001, the family court granted DHS's request for family supervision of Jane, pursuant to DHS's October 9, 2001 service plan.
Meanwhile, on or about October 29, 2001, Mother, upon the advice of Jane's maternal grandmother, unilaterally placed Jane with Aunt. Thereafter, Sammiedean Sutton, the DHS social worker assigned to Jane's case, assisted Aunt in completing an application for a foster family boarding home license in order to provide foster care for Jane. During the ensuing certification process, Sutton discovered that Aunt had a prior history with Child Protective Services (CPS) and that her parental rights to three of her own children had been terminated pursuant to an HRS chapter 587 proceeding; DHS therefore denied Aunt's application for a foster family boarding home license. DHS subsequently notified the GAL of its plan to remove Jane from Aunt's unlicensed home and place Jane in a non-relative, licensed foster home as required by HRS § 346-17 (Supp.2002).8
On November 29, 2001, the GAL filed a motion for immediate review, requesting an order overriding DHS's decision to remove Jane from Aunt's home; the GAL's motion for immediate review, however, did not request that DHS render foster care board payments to Aunt. The family court conducted a hearing on the matter on December 6, 2001, at which Mother testified that she no longer wanted Jane to reside with Aunt because there was "too much family conflict" and that she preferred that Jane be placed in a non-relative foster home. Mother also accused Aunt of "spreading rumors" and vowing to prevent the reunification of Mother with Jane.
Jane's therapist, Judith Rocap, who testified on the GAL's behalf, opined, based on approximately ten meetings with Jane and Aunt, that Jane "ha[d] improved greatly" since she had relocated to her Aunt's residence; Jane appeared well-mannered and regularly attended school and church. Rocap further opined that Aunt's home was a "stable and caring environment" and that it would be detrimental to Jane to uproot her from Aunt's home and place her with strangers. Rocap believed, notwithstanding that foster care placement could generally be detrimental to children, that removing Jane from Aunt's home was particularly risky, given the allegations of sexual abuse of Jane by her father and, possibly, her paternal grandfather.
Aunt, who also testified on the GAL's behalf, acknowledged that she had a prior history with CPS and that, in 1997, her parental rights had been terminated as to three of her children.9 Aunt explained that her children had been removed from her home because her ex-boyfriend had been abusive toward them. Aunt testified that she had since remarried and successfully completed parenting classes, domestic violence classes, and relationship counseling. In 2001, Aunt gave birth to her fifth child,10 with whom CPS was not involved. Aunt admitted that she and Mother had a tumultuous relationship; Aunt maintained that she had attempted to help Mother (presumably, in terminating her relationship with Santos) but that Mother had declined her offer. Aunt, however, denied that she had exposed Jane to verbal altercations with Mother over the telephone. Aunt testified that Jane was adjusting well to her new home and that she was performing well in school.
During argument before the family court, DHS took the position that, given Aunt's prior history with CPS and her inability to become a licensed foster-care provider, it would be in Jane's best interest to remove her from Aunt's home sooner rather than later. Mother reiterated that her difficult relationship with Aunt would likely inhibit her reunification with Jane and that a non-relative foster home would enable Mother and Jane to improve their relationship without the intrusion of family conflict. By contrast, the GAL argued that Mother's disgruntled relationship with Aunt was not a compelling reason to remove Jane from Aunt's home; the GAL urged the family court to consider, in rendering its decision, Rocap's opinion that Aunt's home was a stable and caring environment. Thereafter, the family court ruled as follows:
[The Court]: I'm going to adopt the agreement of the parties as to foster custody, and the award of foster custody to the department is confirmed.
The motion for immediate review is granted. DHS is to keep [Jane] in the home of [Aunt] and not to remove [her]... unless there's an immediate risk of physical harm11.... [I]f there's an immediate risk of physical harm, you don't need a court order. Otherwise, you do.
On December 26, 2001, DHS filed its motion for reconsideration, wherein it argued that, pursuant to HRS § 346-17, see supra note 8, it could not license Aunt's...
To continue reading
Request your trial
-
Honda v. Ers
...Kotis, 91 Hawai`i 319, 328, 984 P.2d 78, 87 (1999). Troyer, 102 Hawai`i at 410, 77 P.3d at 94 (quoting In re Jane Doe, Born on June 16, 1994, 101 Hawai`i 220, 227, 65 P.3d 167, 174 (2003)). C. Statutory And Regulatory . . . . In construing statutes, we have recognized that our foremost obli......
-
Balogh v. Balogh
...is the province of the trier of fact.").A family court's FOF are reviewed under the "clearly erroneous" standard. In re Doe, 101 Hawai‘i 220, 227, 65 P.3d 167, 174 (2003). A FOF is only "clearly erroneous" when "(1) the record lacks substantial evidence to support the finding, or (2) despit......
-
In re Doe Children
...Hawai'i at 115, 883 P.2d at 36) (internal quotation marks and citation omitted, brackets in original). In re Doe, Born on June 16, 1994, 101 Hawai'i 220, 227, 65 P.3d 167, 174 (2003) (quoting In re Jane Doe, Born on June 20, 1995, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23 B. Subject Matte......
-
Troyer v. Adams, 25174.
...910 P.2d 695, 704-05 (1996)); see also State v. Kotis, 91 Hawai'i 319, 328, 984 P.2d 78, 87 (1999). In re Jane Doe, Born on June 16, 1994, 101 Hawai'i 220, 227, 65 P.3d 167, 174 (2003). III. A. Act 300 Governs The Settlement. Dr. Adams argues, notwithstanding that Troyer's complaint pleads ......