In re Interest of AB
| Decision Date | 13 December 2019 |
| Docket Number | SCWC-18-0000010 |
| Citation | 454 P.3d 439 |
| Parties | In the INTEREST OF AB |
| Court | Hawaii Supreme Court |
Peter L. Steinberg, for petitioner
Ian T. Tsuda, Julio C. Herrera, Kurt J. Shimamoto, and Patrick A. Pascual (Sandra L.S. Freitas and Julio C. Herrera on the brief), for respondent
This case requires us to address the proper consideration and weight of a hanai1 relationship in the context of a child welfare proceeding. We conclude that a hanai relative who is a child's resource caregiver has an interest in that child's custody sufficient to allow intervention in such proceedings under Rule 24(a)(2) of the Hawai‘i Family Court Rules (HFCR). In addition, we conclude that, when conducting a best interest of the child analysis, family courts must consider that child's hanai relationships.
The case involves a 7-year-old child, AB, who is now 12. After a short time in foster care, AB reunified with her father and lived in a home with him, his longtime girlfriend, KL, and their child, AB's younger half-sister. AB's father moved out a few months later, but AB, as keiki hanai2 of KL, remained in the same home with her. AB lived there for over a year until the family court changed her placement to her maternal great-aunt and -uncle's home in New Hampshire.
At the hearing changing AB's placement, KL unsuccessfully urged the family court to recognize her interest in the proceeding.3 KL appealed, and the ICA vacated the family court's order denying intervention, holding that because KL had filed a petition to adopt AB, she had a sufficient interest in AB's custody or visitation to intervene as a matter of right. KL filed an application for certiorari seeking this court's further review. She argues that, in addition to her pending adoption petition, her status as a hanai relative conferred a substantive interest in AB's placement.
We accepted certiorari to clarify that the family court should have allowed KL to intervene during AB's placement hearing based in part on her status as AB's hanai parent. The family court committed an additional error when it failed to examine AB's best interests prior to changing her placement to New Hampshire. And, as part of the best interests analysis, the family court should have considered AB's hanai relationships.
AB was born to her mother, SH ("Mother"), and her father, JB ("Father"). Mother and Father were never married. AB has two younger maternal half-siblings, PD and Baby,4 from Mother's other relationships. Mother is originally from New Hampshire and has a large extended family there, including her aunt, SH. Father is from Hawai‘i and has Native Hawaiian ancestry. Father began a relationship with the petitioner, KL, who also has Native Hawaiian ancestry, when AB was around three years old. The parties agree that KL is AB's hanai relative.5
On January 29, 2015, shortly after Mother gave birth to Baby, the Department of Human Services ("DHS" or "Department") initiated protective proceedings with respect to Mother's three children, including AB, by filing a Petition for Temporary Foster Custody. The family court granted temporary foster custody.
AB was unable to live with Father when the Department initiated protective proceedings because Father was living at his parents' home, and his father was a registered sex offender. However, Father began actively looking for housing, and AB and Father had regularly scheduled supervised visits. In accordance with a family service plan, Father engaged in services with the hopes of reunifying with AB.
According to a March 3, 2015 Ohana Conference Report, Father and AB had "a strong support in [Father]'s partner, [KL]." Father and KL had been in a relationship for several years, and they had a child together, TL (AB's paternal half-sister). In a June 5, 2015 Safe Family Home Report, the Department stated that AB "asked Father if she can live with him, and she also asked her [paternal] half-sister's mother, [KL], if she can live with her as well." Father and KL began renting a home together in late 2015.
On January 26, 2016, the family court approved the Department's permanency plan to reunify AB with Father, as Father was "continu[ing] to work on services that will assist [him] with reunification."
On March 2, 2016, KL underwent a psychological evaluation to determine her ability to parent AB. KL indicated that she had been involved in AB's life for approximately five years, and that during her periods of separation with Father, KL kept in touch with AB and Mother so that AB and TL could have contact. The Safe Family Home Report dated May 23, 2016 stated, "The evaluation did not find any deficits in [KL's] ability to take care of [AB][.]"
On March 18, 2016, AB was reunified with Father, TL, and KL under an award of Family Supervision, as the Department found, and the court agreed, that Father was able "to provide a minimally safe family home for [AB] at this time with the assistance of a court-ordered service plan."
On February 19, 2016, AB's maternal great-aunt, SH, filed a Motion to Intervene. SH argued that she was entitled to intervene pursuant to HFCR Rule 24.6 SH sought to intervene to ensure that the court was aware of "the concerns of the maternal extended family" and "to give [the] [c]ourt and the Department another placement option[.]" SH claimed that she was "not seeking custody" and "only want[ed] to support [PD's and AB's] fathers and be a second option if necessary[.]" SH noted, however, that she had "submitted the necessary paperwork (which the Department is mandated to consider) necessary to be considered a placement option," and she argued that she "has the legal right to seek custody, should that become necessary, pursuant to [HRS] § 571-46(a)(2)."7 DHS opposed SH's Motion to Intervene.8 The court denied the Motion without explaining its reasoning.
On May 20, 2016, the Department submitted a report to the court in advance of the next hearing. The Department reported that Father and KL "are unsure at this point if they are going to stay together[.]" The Department noted, however, that both At the time, the Department recommended continuing family supervision.
AB continued to live with KL. The Department reported that 9 While the Department noted that "Father has had visits with [AB], and helps co-parent her," it changed its recommendation from continued family supervision to foster custody, given Father's new living arrangement - back at home with his father.
After a hearing held on June 2, 2016, the family court placed AB in foster custody and formalized AB's "placement with her hanai relative, [KL]."
Over four months later, on October 17, 2016, the Department reported that Father had "not engaged in services or moved back into the family home since the last hearing held on June 2, 2016." The Department indicated,
The Department further reported that since the last review period, Father had minimal contact with KL and DHS, and had not followed through with any recommended services. The report provided, and "has made efforts to encourage Father to see his daughter, but without success."
The report noted that AB's maternal relatives, including her maternal great-aunt, SH, recently visited AB and PD in Hawai‘i.
On November 2, 2016, the Department filed a Motion to Terminate Parental Rights, which was set for hearing on March 10, 2017. Attached to the Motion was a Permanent Plan dated November 1, 2016.10 As outlined in the Plan, the Department's permanency goal for AB was for "[p]arental rights to be divested at the next court hearing" and for AB "to be under permanent placement with DHS by the next court hearing." In relevant part, the plan stated:
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