In re Interest of R.K.

• Decision Date: 16 November 2016
• Docket Number: NO. CAAP–14–0001091,CAAP–14–0001091
• Citation: 139 Hawai'i 265,388 P.3d 53 (Table)
• Parties: IN THE INTEREST OF R.K.; K.K.
• Court: Hawaii Court of Appeals

139 Hawai'i 265

388 P.3d 53 (Table)

IN THE INTEREST OF R.K.; K.K.

NO. CAAP–14–0001091

Intermediate Court of Appeals of Hawai'i.

DATED: Honolulu, Hawai‘i, November 16, 2016

On the briefs:

Herbert Y. Hamada, Honolulu, for Mother–Appellant.

Mary Anne Magnier, Honolulu, Erin K.S. Torres, Deputy Attorneys General, for Petitioner–Appellee.

(By. Fujise, Presiding Judge, and Leonard, J.; and Reifurth, J., dissenting)

SUMMARY DISPOSITION ORDER

Mother–Appellant appeals from the August 14, 2014 Order After Trial and the August 22, 2014 Orders Concerning Child Protective Act (Orders Concerning CPA ) entered in the Family Court of the First Circuit (Family Court ).¹ Mother contends that the Family Court abused its discretion in awarding temporary foster custody of her minor children, RK and KK, (Children ) to the Hawai‘i Department of Human Services (Department or DHS ) and challenges various rulings in the Order After Trial and the September 11, 2014 Findings of Fact and Conclusions of Law (FOFs/COLs ).

In her points of error on appeal, Mother contests the Family Court's rulings that were numbered 1, 4, 6, 7, 8, and 10 in the Order After Trial (these rulings were also included as FOFs 59 a, d, f, g, h, and j in the FOFs/COLs), as well as FOFs 77, 86, 117, 118, 120, and 121 in the FOFs/COLs.

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 Mother's points of error as follows:

Hawaii Revised Statutes (HRS ) § 58 7A-26 (Supp. 2015) provides, in relevant part:

§ 587A-26 Temporary foster custody hearing.

....

(c) After reviewing the petition and any reports submitted by the department and considering all information pertaining to the safe family home factors, the court shall order:

(1) That the child be immediately released from the department's temporary foster custody, placed in temporary family supervision, and returned to the child's family home with the assistance of services, upon finding that the child's family is able to provide a safe family home with services; or

(2) That the child continue in the department's temporary foster custody, upon finding that there is reasonable cause to believe that continued placement in foster care is necessary to protect the child from imminent harm; provided that in making this determination, the court shall consider whether:

(A) The department made reasonable efforts to prevent or eliminate the need for removing the child from the child's family home before the child was placed in foster care;

(B) The alleged or potential perpetrator of imminent harm, harm, or threatened harm should be removed from the family home rather than continuing the child's placement in foster care. The child's family shall have the burden of establishing that it is in the child's best interests to remove the child, rather than the alleged or potential perpetrator, from the family home; and

(C) Every reasonable effort has been or is being made to place siblings or psychologically-bonded children together, unless such placement is not in the children's best interests.

The following standards apply to this court's review of the Family Court's rulings in this case:

The family court's FOFs are reviewed on appeal under the clearly erroneous standard. A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

On the other hand, the family court's COLs are reviewed on appeal de novo , under the right/wrong standard. COLs, consequently, are not binding upon an appellate court and are freely reviewable for their correctness.

However, the family court's determinations pursuant to HRS § S87-73 (a)² with respect to (1) whether a child's parent is willing and able to provide a safe family home for the child and (2) whether it is reasonably foreseeable that a child's parent will become willing and able to provide a safe family home within a reasonable period of time present mixed questions of law and fact; thus, inasmuch as the family court's determinations in this regard are dependant upon the facts and circumstances of each case, they are reviewed on appeal under the clearly erroneous standard. Likewise, the family court's determination of what is or is not in a child's best interests is reviewed on appeal for clear error.

Moreover, the family court is given much leeway in its examination of the reports concerning a child's care, custody, and welfare, and its conclusions in this regard, if supported by the record and not clearly erroneous, must stand on appeal.

In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623 (2001) (citations, quotation marks, ellipses, and brackets omitted).

The Hawai'i Supreme Court has applied this deferential standard to its review of the award of temporary foster custody, stating:

[T]he family court possesses wide discretion in making its decisions and those decisions will not be set aside unless there is a manifest abuse of discretion. Under the abuse of discretion standard of review, the family court's decision will not be disturbed unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant, and its decision clearly exceeded the bounds of reason.

In Interest of Doe, 84 Hawai'i 41, 46, 928 P.2d 883, 888 (1996) (citations, quotation marks, and brackets omitted).

As the Family Court concluded in part in its FOFs/COLs:

5. The purpose of the Child Protective Act, HRS Chapter 587A, is to make paramount the safety and health of the children who have been harmed, and to provide children with prompt and ample protection from the harms, as stated in the Child Protective Act, supra, with an opportunity for timely reconciliation with their families, if they can provide safe family homes, with timely and appropriate services or permanent plans to ensure the safety of the child. HRS § 587A-2. The Hawai‘i Legislature made it clear that child safety is paramount. Id.

6. The Child Protective Act, supra , shall be liberally construed to serve the best interests of the child and the purposes of the Child Protective Act, supra. Id.

7. The Court may look to the past and present conditions of the home and natural parents so as to gain insights into the quality of care the Children may reasonably be expected to receive in the future. In re Doe, 95 Hawai'i 183, 191, 20 P.3d 616, 624 (2001). Woodruff v. Keale, 64 Haw. 85, 99, 637 P.2d 760, 769 (1981).

On January 9, 2014, Mother's three-year-old child, RK, suffered a life-threatening and life-altering brain injury, which is described in the Family Court's unchallenged FOFs as follows:

66. [RK] suffered a subdural hemorrhage with severe brain swelling, which is a serious, life-threatening injury.

67. When [RK] underwent a craniotomy to remove a part of his skull in order to relieve the pressure on his swelling brain, the surgeon directly observed the source of the bleeding in his brain to be a lacerated or torn vein.

68. Blood tests have ruled out a bleeding disorder as the cause of [RK's] brain injury.

69. A vascular malformation has been ruled out as a cause of [RK's] brain injury as no vascular malformations were observed by a CT scan of his brain in May 2013 or by direct observation of the surgeon during [RK's] craniotomy.

70. A metabolic disorder has been ruled out as a cause of [RK's] brain injury as [RK's] development has been normal.

71. At the time of his injury, [RK] was taking amoxicillin and tylenol to treat an ear infection. Both the ear infection itself and the medication he was taking were not related to [RK's] brain injury at all.

72. There is no medical condition that explains [RK's] brain injury.

73. [RK's] brain injury was caused by blunt force trauma to his head. This trauma occurred within a matter of a few hours prior to [RK] having seizures and losing consciousness. Following such a trauma, the bleeding in [RK's] brain would have caused deterioration in his functioning over time, including a worsening headache and a declining level of consciousness.

74. It is unlikely that [RK's] injury was caused by the hitting of his head on the stair rail on January 8, 2014 because of the described mild force with which [RK's] head struck the rail and more importantly, because of the described period of about 16 hours of normal, active, playful behaviors between the stair rail event and [RK] losing consciousness.

75. [RK's] vomiting on January 8, 2014 and January 9, 2014 is not necessarily medically associated with his brain injury. If the vomiting had been in combination with pain and abnormal behavior, then it would have been associated with his brain injury.

76. It is unlikely that [RK] had an existing injury that was exacerbated by hitting his head on the stair rail on January 8, 2014 and resulted in his subdural brain hemorrhage. If there was an old injury, it would have healed quickly and would not have been aggravated by a minor injury that occurred months later.

....

78. [RK] has a severe residual brain injury, is unlikely to regain consciousness, and requires excessive and life long full time care. He currently receives hospice and urgent care services for twelve hours per day.

79. [RK] has extreme special needs due to his brain injury. He is vulnerable to child maltreatment due to his medical condition and complete dependence on adult caretakers to meet his needs.

....

83. At the time of [RK's] brain injury, Mother was the primary caregiver for the Children.

84. At the time of [RK's] brain injury, the people who had access to [RK] outside of Mother's supervision were [Boyfriend] and [Boyfriend's] parents.

85. Mother is unable to identify the

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