In re: AK and SK

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-APR-2022
07:47 AM
Dkt. 116 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

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)

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
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SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)

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

1
The Honorable John C. Bryant, Jr. presided.

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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

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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

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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.

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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.

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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:

§ 578-8 Hearing; investigation; decree.
(a) No decree of adoption shall be entered unless a
hearing has been held . . . . After considering the
petition and any evidence as the petitioners and any
other properly interested person may wish to present,
the court may enter a decree of adoption if it is
satisfied that:

(1) The individual is adoptable under sections 578-1
[jurisdiction] and 578-2 [consent];

(2) The individual is physically, mentally, and
otherwise suitable for adoption by the
petitioners;

(3) The petitioners are fit and proper persons and
financially able to give the individual a proper
home and education, if the individual is a
child; and

(4) The adoption will be for the best interests of
the individual[.]

HRS § 578-2(a) provides, in part, that "a petition to

adopt a child may be granted only if written consent to the

proposed adoption has been executed by: . . . . (6) Any person or

agency having legal custody of the child or legally empowered to

consent[.]"

"DHS, as permanent custodian of a child, has the

discretion in the first instance to determine where and with whom
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a child shall live." In re AS, 132 Hawai#i at 370, 322 P.3d at

265. "[T]his placement determination is, however, subject to

review by the family court, which is authorized and required by

law to determine whether the placement is in the child's best

interests." Id. at 378, 322 P.3d at 273. "[T]he party

challenging DHS's permanent placement recommendation bears the

burden of proving by a preponderance of the evidence that the

permanent placement is not in the child's best interests[.]" Id.

at 388, 322 P.3d at 283.

(1) In COL 21, the Family Court concluded:
21. The determination of which permanent placement is
in the children's best interests is based on the HRS
§ 57l-46(b) factors and is not based on which home is the
better home or the best home in terms of financial resources
or other resources. In re Doe, 95 Hawai#i 201, 238, 20 P.3d
634, 671 (App. 2000), rev'd on other grounds, 95 Hawai#i 83,
20 P.3d 616 (2001) (citations omitted) (The "best interests"
of a child can never mean the better interests of the child.
It is not a choice between a home with all the amenities and
a simple apartment, or an upbringing with the classics on
the bookshelf as opposed to the mass media, or even between
parents or providers of vastly unequal skills).

Appellants correctly point out that In re Doe was an

appeal from a decision terminating parental rights; in that

context, this court noted that where "important parental rights

and interests [are] at stake," a family court may not terminate

parental rights just because the adoptive parent or other

permanent custodian can provide a "better" life than the natural

parent. 95 Hawai#i at 238-39, 20 P.3d at 671-72. Here, however,

we are reviewing a contested adoption; the disputed issue before

us is not whether the Family Court erred in terminating Father's

parental rights, but whether the Family Court clearly erred in

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its rulings on the competing adoption petitions and in its

ultimate determination that Children's adoption by CG and AG, as

opposed to MR and DR, is in the Children's best interests. Thus,

we conclude that the Family Court erred in part in COL 21, when

it relied on In re Doe in the manner it did in this case.

However, we must consider that error in the context of the

entirety of the Family Court's decision to grant DHS's adoption

petition, and deny Appellants' adoption petition, in order to

determine whether that error was harmless error or whether the

Family Court's adoption decisions must be vacated. Accordingly,

we will return to this after considering the other issues raised.

(2) In COL 23, the Family Court concluded:
23. The concurring opinion in the Hawai#i Supreme
Court decision in In re AS, stated that the relevant
statutes do not preclude "kinship" (blood relationship) as a
substantial factor in determining which permanent placement
is in the children's best interests pursuant to the
permanent plan. In re AS, 132 Hawai#i at 390, 322 P.3d at
285 (Acoba, concurring). This concurring opinion is not
binding precedent. Further, the validity and applicability
of this concurring opinion is questionable based on the
Hawai#i Supreme Court decision in In re of [sic] AB, 145
Hawai#i 498, 517, FN 35, 454 P.3d 439, 458, FN 35 (2019),
where the court stated, "It is also unclear whether the
family court considered this court's holding that there is
no relative placement preference in HRS chapter 587A with
respect to permanent placement of foster children."
(Internal quotation marks and brackets omitted) (citing In
re AS, 132 Hawai#i at 370, 322 P.3d at 265).

The Family Court was not wrong in concluding that a

concurring opinion of the supreme court is not binding precedent.

However, the Family Court was wrong to conclude that validity and

applicability of the concurrence in In re AS was rendered

"questionable" based on the quoted footnote in In re AB. In re

AB does not reject the concurrence in In re AS; it merely

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observed that the family court in that case appeared to accept

DHS's relative placement recommendation "without any serious

inquiry into AB's best interests," and thus, it appeared to rely

on a kinship placement "preference." In re AB, 145 Hawai#i at

517 & n.35, 454 P.3d at 458 & n.35.

In this case, although the Family Court gave no weight

to an expert witness's testimony regarding the benefits of

relative placement, the Family Court clearly considered that the

Appellants were blood relatives and that the Children's ability

to maintain biological family connections was beneficial. The

Family Court also considered that both sets of prospective

adoptive parents averred that they would maintain those

connections, and CG and AG had a consistent track record of doing

so throughout their service as RCGs. While the Family Court may

have rejected kinship as a "substantial" factor in this case, the

court's adoption decision was based on its analysis of the best

interests of the Children in light of numerous factors, and the

court's misreading of the footnote in In re AB was harmless error

under the totality of the circumstances here.

(3) Appellants argue that the Family Court erred when

it failed to find that DHS unreasonably withheld its consent to

their adoption of the Children. The challenged FOFs and COLs are

as follows:
194. The DHS credibly assessed that the permanent
placement of the Children with the [RCGs], instead of
[Appellants], is in the Children's best interests. The
factual bases for the DHS' assessment are (but not limited
to) that the Children shall not be separated and must remain

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permanently in the same placement, the Children identify the
[RCGs] as their parents and the [RCGs'] home as their home,
the [RCGs'] demonstrated ability to care for all of the
Children's needs, especially [AK's] emotional and behavioral
needs, the length of time the Children have resided in the
[RCGs'] home, the Children's, especially [AK's], need for
stability, the [RCGs'] willingness to maintain connections
with the Children's biological family, including Father, the
DHS reliance on communications by [paternal grandmother]
regarding the paternal family's position supporting
permanent placement of the Children with the [RCGs], and
concerns about [Appellants'] commitment to the Children.

195. The DHS, as the Children's permanent custodian,
consented to the adoption of the Children by the [RCGs], but
did not consent to the adoption of the Children by
[Appellants].

196. In addition to consenting to the adoption of the
Children by the [RCGs], the factual bases for the DHS'
withholding of its consent to [Appellants] adopting the
Children are the same factual bases for the DHS assessing
that the permanent placement of the Children with the [RCGs]
is in their best interests. The DHS did not unreasonably
withhold its consent to the adoption of the Children by the
[Appellants].

197. None of the underlying facts and data upon which
the DHS based its opinions, assessments and recommendations
were shown to be unreliable or untrustworthy. The DHS'
continuing assessments in this case were conducted in an
appropriate manner.

. . . .

28. As the children's permanent custodian in the CPA
proceedings, the DHS is required to consent to an adoption
petition pursuant to HRS § 578-2(a)(6), unless consent is
dispensed under HRS § 578-2(c). Matter of Adoption of H.A.,
143 Hawai#i at 75-76, 422 P.3d at 653-54. The court may
dispense with the DHS' consent when it finds that the DHS
failed to respond to a written request to consent to the
adoption petition or the DHS unreasonably withheld its
consent pursuant to HRS § 578-2(c)(l)(H). Id.

. . . .

30. The party challenging the DHS' withholding its
consent to an adoption petition has the burden to prove, by
the preponderance of the evidence, that DHS' withholding of
its consent is unreasonable.

. . . .

34. The DHS, as the Children's permanent custodian in
the FC-S No. 18-00112 and FC-S No. 18-00241 CPA proceedings,
did not unreasonably withhold its consent to the adoption of
the Children by [Appellants].

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In In re HA, this court held, inter alia:

[T]he family courts must make a separate inquiry into
whether the applicable HRS § 578-2 consent provision has
been satisfied, or whether the first of the four HRS
§ 578-8(a) requirements has otherwise been met. With
respect to the unreasonableness of DHS's withholding of
consent to adoption, consistent with the standard applicable
to other aspects of permanent placement, we hold that the
party challenging DHS's action bears the burden of proving,
by a preponderance of the evidence, that the withholding of
consent is unreasonable. See In re AS, 132 Hawai #i at 377,
322 P.3d at 272. The reasonableness of DHS's decision
should be examined in light of the process undertaken and
the reasons articulated by DHS in support of its decision to
withhold consent. Inevitably, many if not all of DHS's
considerations regarding consent will be germane to the
requirement that the adoption be in the best interest of the
child. However, no decree of adoption may be entered unless
all of the HRS § 578-8(a) requirements have been satisfied.

In re HA, 143 Hawai#i at 78-79, 422 P.3d at 656-57 (footnote

omitted).

Here, the Family Court separately considered and

clearly examined the reasonableness of DHS's decision to withhold

consent in light of the process undertaken by DHS in reaching

that decision, as well as the reasons articulated by DHS in

support of its decision to withhold consent to the Children's

adoption by Appellants. As anticipated in In re HA, here the

factual basis for DHS's consenting to RCGs' adoption of the

Children was essentially the same as DHS's withholding of consent

to Appellants' adoption of the Children. As it is not possible

for two different sets of parents to adopt the same child or

children, it is not inherently unreasonable for DHS to consent to

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only one or the other adoption, but not both.2 Although DHS

arguably could have obtained an ICPC assessment for placement

with Appellants at an earlier date, Appellants themselves were

apparently (and understandably) reluctant to disturb the

Children's temporary placement with the RCGs prior to the

termination of Father's parental rights. At no point did the

Family Court find or even suggest that Appellants were not proper

and fit to become the adoptive parents. Rather, the Family Court

found that it was not unreasonable for DHS to withhold consent

for Appellants to adopt because the Children's best interests

were paramount, and – notwithstanding the fitness of both sets of

prospective adoptive parents – great weight was given to the

Children's identification of the RCG family as their family, as

well as the Children's needs for stability, particularly AK's

needs in light of the turmoil and trauma of her early years.

These were not the only factors considered by DHS or the Family

Court, but they could fairly be considered the tipping-point

factors in this case. We conclude that the Family Court did not

clearly err in finding that DHS did not unreasonably withhold

consent to Appellants' adoption of the Children.

2
This should not be construed as stating that it would (or would
not) be inherently unreasonable for DHS to give consent for adoption to two
sets of competing adoptive parents, as that circumstance is not presented
here.

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(4) Appellants challenge the Family Court's findings

and conclusions that CG and AG are financially able to give the

Children a proper home and education, as required in HRS

§ 578(a)(3). The record evidences that AG did not work outside

the home and therefore did not contribute to the family's income.

As reflected in the Family Court's unchallenged FOF 169, CG works

as a minister. It appears that his income is not "regular" in

the sense that it stems primarily from donations for his pastoral

services that are not tied to a particular church or

congregation, and he does not have a steady monthly paycheck. In

addition, CG has tapped now-dwindling investments to supplement

his income as a minister. CG testified that his annual income

was in the range of $90,000, which would average out to about

$7,500 month. There is no direct testimony, testimony on cross-

examination, or other evidence in the record to the contrary.

Although the Family Court clearly erred in misstating this

testimony as approximately $9,000 monthly, the court did not

clearly err in basing its determination that CG and AG are

financially able to give the Children a proper home and education

on this testimony, as well as DHS's assessment that they had no

concerns about the RCGs' financial ability. The Family Court's

error in the "specific" approximation of monthly income is

harmless, as there is no evidence or argument that the monthly

average income supported by CG's testimony is inadequate to give

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the Children a proper home and education. In addition, Asato

testified that CG had demonstrated resourcefulness to secure the

funds needed to care for the Children, including enrolling AK in

an appropriate school and providing other necessary educational

expenses such as specialized tutoring, as reflected in the

court's FOFs. Although Appellants challenge this finding, they

point to no testimony or other evidence in the record and ask

this court to consider their superior financial security and

ability to provide for the Children's needs. While it is clear

from the record that, comparatively, Appellants stand on firmer

ground financially, the question is whether the Family Court

clearly erred in finding and concluding that CG and AG are

financially able to give the Children a proper home and

education. Considering all of the evidence and the reasonable

inferences therefrom, we reject Appellants' argument that the

Family Court clearly erred in this regard.

(5) Appellants contend that the Family Court clearly

erred in its consideration of the factors listed in HRS § 571-

46(b), which the appellate courts have recognized as potentially

applicable, along with other considerations, in the context of a

child's best interests in an adoption case. Appellants argue

that the Family Court failed to heed the supreme court's

directives in In re AS, as well as this court's opinion in In re

HA, by giving too much deference to DHS's permanent placement

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determination, and failing to make its own independent

determination of the best interests of the Children here. The

Hawai#i appellate courts have consistently recognized DHS's

statutory charge, expertise, and discretion to make an initial

determination as to permanent placement. See In re AS, 132

Hawai#i at 377-78, 322 P.3d at 272-73; In re HA, 143 Hawai#i at

76-77, 422 P.3d at 654-55. In the same breath, the appellate

courts also made clear that the Family Court must make its own

independent determination of the best interests of the children.

We reject Appellants' argument that the Family Court in this case

failed to independently evaluate all of the evidence and make its

own judgment as to the best interests of the Children. Our

review of the totality of the record leaves us with a firm

conviction that the Family Court did in fact independently

evaluate all of the evidence and make its own judgment as to the

best interests of the Children. We further reject Appellants'

invitation to revisit the supreme court's placement of the burden

of proof on the party who is challenging DHS's determination.

See In re AS, 132 Hawai#i at 377, 322 P.3d at 272; In re HA, 143

Hawai#i at 77, 422 P.3d at 655.

(6) Appellants contend that the Family Court erred by

treating the length of the Children's placement with RCGs as a

presumption that the Children should be permanently placed with

the RCGs. This argument is without merit. Here, the Family

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Court separately weighed all of the HRS § 571-46(b) factors (and

other factors as well), and considered all of the evidence before

it and the circumstances of the Children individually and as a

family unit. AK's attachment in particular to AG and CG was

relevant and important to many of the considerations concerning

the best permanent placement of the Children. While we

understand why MR and DR might view the period of the Children's

bonding with the RCGs as having been a nearly insurmountable

hurdle – and we have recognized these bonds as a tipping-point

issue in this case – there is nothing in the record to suggest

that the Family Court treated the length of the Children's

placement with RCGs as a presumption that the Children should be

permanently placed with the RCGs.

Finally, we return to the issue of the Family Court's

error in COL 21. Upon review of the entirety of the record,

including the Family Court's oral rulings, written orders, and

all of the FOFs and COLS, we conclude that the Family Court's

error in COL 21 was harmless. Ultimately, the Family Court

properly undertook all of the statutory requirements for entering

an adoption decree, in light of the relevant guidance provided by

the appellate courts, based upon the testimony and evidence

before it.

For these reasons, we affirm the Family Court's April

6, 2021 Orders Concerning Child Protective Act entered in FC-S

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No. 18-00112 and FC-S No. 18-00241, and its April 6, 2021 Orders

filed in FC-A No. 20-1-6137 and FC-A No. 21-1-6005.

DATED: Honolulu, Hawai#i, April 18, 2022.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Francis T. O'Brien,
for Intervenors/Petitioners/ /s/ Clyde J. Wadsworth
Respondents-Appellants. Associate Judge

Patrick A. Pascual, /s/ Karen T. Nakasone
Julio C. Herrera, Associate Judge
Ian T. Tsuda,
Regina Anne M. Shimada,
Deputy Attorneys General,
State of Hawai#i,
for Petitioner/Respondent-
Appellee DEPARTMENT OF HUMAN
SERVICES.

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