In re: KY

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-APR-2023
08:07 AM
Dkt. 78 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

IN THE INTEREST OF KY

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-S NO. 18-1-0150)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Intervenors-Resource Caregivers-Appellants SY and EY

(collectively Maternal Grandparents) appeal the Family Court of

the Second Circuit's September 30, 2021 "Findings of Fact
Conclusions of Law, Decisions and Orders Following Evidentiary

Contested Hearing on [Department of Human Services' (DHS)] Motion

to Terminate Parental Rights and Establish a Permanent Plan,

Filed July 27, 2020" (Order).1

In denying DHS' motion to terminate parental rights and

establish a permanent plan recommending adoption by Maternal

Grandparents, the family court ordered DHS to instead prepare a

1
The Honorable Adrianne N. Heely presided.
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permanent plan that recommends a legal co-guardianship between

Maternal Grandparents and Paternal Grandparents. The family

court then ordered that grandparents share equal time with KY,

suggesting a week on and week off schedule.

As DHS' proposed permanent plan states, and is evident

from the record, KY "is a very loved child by both Paternal and

Maternal Families." But the family court here failed to address

all the elements of Hawaii Revised Statutes (HRS) § 587A-33

(2018) and, thus, abused its discretion.
I. Background

A. Foster Custody

KY was born in 2016. This case started when KY

ingested his father's "detox medication" while at Paternal

Grandparents' home. On December 21, 2018, DHS filed a Petition

for Temporary Foster Custody "due to maternal and paternal

substance abuse that led to threatened abuse and neglect of" KY.

KY was then placed with Maternal Grandparents.

On January 11, 2019, Mother and Father stipulated to

awarding DHS temporary foster custody of KY. Father also
stipulated to the family court's jurisdiction. The court awarded

DHS foster custody of KY and noted KY entered foster care on

January 8, 2019. About a month later, Mother stipulated to the

family court's jurisdiction and the court continued DHS' foster

custody of KY.

On January 9, 2020, the family court entered an Order

Continuing Foster Custody, Continuing the Service Plans dated

1/29/19 and 4/16/19 and Setting a Permanency Hearing, stating

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"Father stipulates that he could not meet his burden of proof at

an order to show cause and why the case should not be set for

permanent planning."

On February 10, 2020, Paternal Grandmother filed a

Motion to Intervene.

On February 12, 2020, the family court entered an Order

Continuing Foster Custody, Continuing the Service Plans dated

1/29/19 and 4/16/19 and Setting a Permanency Hearing, stating

"Mother stipulates that she would be unable to meet her burden at
an OSC and agrees to permanency."

On April 27, 2020, Maternal Grandparents filed a Motion

to Intervene and Acquire Party Status, which the family court

granted.
B. Motion To Terminate Parental Rights

On July 27, 2020, DHS filed a Motion to Terminate

Parental Rights pursuant to HRS §§ 587A-4, -32, and -33 (2018).

With the motion, DHS' social worker, Danielle Egeberg (Egeberg),

opined that there was clear and convincing evidence:
a. That the child's legal mother, legal father . . . are not
presently willing and able to provide the child with a
safe family home, even with the assistance of a service
plan;

b. That it is not reasonably foreseeable that the child's
legal mother, legal father . . . will become willing and
able to provide the child with a safe family home, even
with the assistance of a service plan, within a
reasonable period of time; and

c. The proposed permanent plan, dated July 23, 2020 which is
included in Exhibit "A" and which nominates the DHS as
the proposed permanent custodian, is in the best
interests of the child[.]

(Some formatting altered.)

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Attached to the Motion, the July 23, 2020 proposed

permanent plan's (Permanent Plan's) goal was to "[m]aintain

family, culture and community connections with both paternal and

maternal families." The objective was for KY to be "[a]dopted by

Maternal Grandparents and maintain visit[s] with Paternal

Grandmother and Step Grandfather." The Permanent Plan explained

that
DHS/CWS will continue supporting visits with all family
members that are appropriate. Once adoption is completed,
visits with [sic] be set up through adoptive party. This SW
has spoken with Maternal Grandparents . . . who have stated
if they are able to adopt, they will continue to support
appropriate visits with other family members of [KY].

DHS' assessment and recommendation stated that it "is

recommending adoption with [Maternal Grandparents]. DHS believes

that adoption is in the best interest for [KY]. Adoption

provides a stable setting for [KY] to be able to grow up in a

loving home and not have to worry if he has [sic] going to be

moved again."

On August 28, 2020, Paternal Grandmother filed a Motion

for Establishment of Proposed Permanent Plan. Attached to the

motion was a "Memorandum in Support of Motion and in Opposition
to DHS Proposed Permanent Plan," a Petition for Appointment of

Conservator and Guardian, and a Proposed Long-Term Visitation

Plan. Paternal Grandmother stated there was "no reasonable

basis" to oppose her having "equal involvement in [KY]'s life"

and claimed adoption was not in KY's best interests because, if

he was adopted by Maternal Grandparents, he would "undoubtedly

lose all contact with the paternal side of the family," as they

opposed involvement of Father and his family in Mother's and KY's

life. Paternal Grandmother noted Maternal Grandparents refused

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to discuss visitation until after adoption occurred or agree to

maintain the current timesharing schedule. Paternal Grandmother

believed "granting [her] guardianship (or adoption) of [KY] is in

his best interests," because she was committed to involving both

sides of KY's family on a regular and consistent basis.

Paternal Grandmother claimed "adoption and the

imbalance of power that adoption affords just one side of his

family (maternal), will result in detrimental emotional and

psychological impact to [KY]," and
although one party may claim they are willing to maintain a
relationship between [KY] and both sides of [KY]'s family,
there will be no legal recourse for the rebuffed family if
those prove to be empty. However, if the guardianship path
proposed by [Paternal Grandmother] is employed, the
interested party may intervene in the event that the
guardianship proves not to be in [KY]'s best interest.

Paternal Grandmother petitioned to be appointed as KY's guardian

pursuant to HRS §§ 560:5-106 (2018) and 560:5-108(a) (2018),

before parental rights were terminated, stating "[KY] should be

determined to be in a safe family home and there is no further

need for this child welfare proceeding."

Paternal Grandmother's Proposed Long-Term Visitation

Plan included a time-sharing plan for KY up to sixth grade and

from sixth grade until KY was no longer a minor. Specifically,

the long-term plan detailed custody for each day of the week, and

explained details of exchanges between Paternal and Maternal

Grandparents, extracurricular activities, holidays, special

occasions, school breaks, and vacations. Part II of the document

provided rules about communication between the parties and party

conduct.

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Trial commenced on February 5, 2021, with numerous

witnesses testifying: Egeberg (DHS/CWS Social Worker); Yukari

Murakami (Murakami) (Guardian Ad Litem (GAL)); Maternal

Grandparents; KY's Aunty; Dr. Heather Wittenberg (expert in child

psychology); Dr. Santo Triolo (expert in child psychology);

Paternal Grandmother; Jennifer Purcell (expert in field of

Marriage/Family therapy and professional visitation supervisor);

Paternal Step-Grandfather; and Father.

The family court denied DHS' motion to terminate

parental rights of mother and father and establish a permanent

plan recommending adoption, found that it was in KY's best

interests to have a legal co-guardianship, and ordered DHS to

prepare a revised permanent plan that calls for a legal co-

guardianship between Maternal Grandparents and Paternal

Grandparents:

1. The Motion to Terminate Parental Rights filed July 27,
2020 and Establish the Permanent Plan of Adoption is
DENIED. The court finds that the elements of H.R.S.
§587A-33(a)(3) and (4) and DHS' Permanent Plan calling
for adoption to [Maternal Grandparents], have not been
proven by clear and convincing evidence. Further, since
the elements of §587A-33 have not all been met, the court
also DENIES the DHS' request to terminate parental rights
of Mother and Father.

2. The court further finds that [Paternal Grandparents] have
met the burden of challenging the Permanent Plan calling
for adoption to the [Maternal Grandparents], by the legal
standard preponderance of the evidence.

3. Pursuant to H.R.S. §587A-32 and §587A-33; the court finds
it in the best interest of the child that a legal co-
guardianship be adopted for [KY]. Further, DHS shall
prepare revised permanent plan which calls for a legal
co-guardianship and prepare a petition for co-
guardianship naming [Maternal and Paternal Grandparents]
as joint legal and joint physical co-guardians, with
[Maternal Grandparents] having tie breaking authority as
it relates to educational decisions to be made for [KY],
and [KY] shall remain in [Maternal Grandparents'] home
. . . . As co-guardians, [Maternal and Paternal
Grandparents], for as long as the parents are unable to
provide for [KY], shall act in the best interest of [KY]
and be familiar with the duties, rights and immunities of

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Guardians, if an emergency decision needs to be made, the
guardian with physical custody of [KY] shall make said
decision with consultation with the treating professional
and update the non-custodial guardian and parent as soon
as practicable.

4. Effectively [sic] immediately, pending the legal co-
guardianship, [Maternal and Paternal Grandparents] shall
equally share time with [KY], with a suggested week on
week off schedule, and exchange day on Sundays 5 p.m.,
unless [Maternal and Paternal Grandparents] reach a
better day for exchange; so that the co-guardian may
ready [KY] for [KY's] preschool/weekly activities. The
court is also suggesting that the co-guardians share
equally Holidays/Vacations and School Breaks (i.e. Fall
Break/Winter Break) with [Maternal Grandparents] having
the first half and [Paternal Grandparents] having the
second half of those school breaks.

5. Pursuant to H.R.S. §587A-33(h)(3)/(4), the court further
orders the parties: DHS; Mother; Father; [Maternal
Grandparents]; [Paternal Grandparents] along with their
counsel and [KY's] [GAL] to appear for a permanent
plan/review/permanency hearing in six months. At this
hearing, the court shall be presented with the parties'
proposed parenting plans with specific
timesharing/holiday schedule, and status updates on
Father and Mother's progress.

(Emphases added.) Maternal Grandparents timely appealed.
II. Standards of Review

A. Family Court Decisions
Generally, the family court possesses wide discretion in
making its decisions and those decision[s] will not be set
aside unless there is a manifest abuse of discretion. Thus,
we will not disturb the family court's decisions on appeal
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.

Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)

(quoting In re Doe, 95 Hawai#i 183, 189-90, 20 P.3d 616, 622-23

(2001)).
B. Statutory Interpretation

"Statutory interpretation is a question of law

reviewable de novo." In re R Children, 145 Hawai#i 477, 482, 454

P.3d 418, 423 (2019) (citation omitted).

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III. Discussion

On appeal, Maternal Grandparents contend in their

points of error that the family court erred in denying DHS'

motion to terminate parental rights and establish a permanent

plan of adoption.2 Maternal Grandparents argue that adoption is
preferred and the family court incorrectly applied the law.3

Maternal Grandparents explain, "[s]ince both Father and

Mother had stipulated to the first two elements needed in order

to terminate their parental rights, the issue before the Court
during the trial was whether there was clear and convincing

evidence that the Permanent Plan prepared by the DHS was in

[KY's] best interests." Maternal Grandparents point out that

Mother and Father have not been able to provide KY with a safe

home for over two years, and that "there was clear and convincing

evidence that the Permanent Plan for adoption was in [KY's] best

interests because it would provide that closure and stability."

HRS § 587A-33(a) governs the termination of parental

rights, providing in part:
At a termination of parental rights hearing, the court
shall determine whether there exists clear and
convincing evidence that:

2
Maternal Grandparents raise two more points of error challenging
Conclusions of Law (COL) numbers 1-28 and Findings of Fact (FOF) numbers 62,
63, 65, 67, and 69. They, however, do not provide a corresponding legal
argument as to each COL and FOF they challenge. Rules Expediting Child
Protective Appeals Rule 11(a)(4) (explaining that the opening brief shall
include a "[c]oncise legal argument about each point of error with citation to
legal authority"). Instead, they appear to challenge these COL and FOF in the
context of their challenge to the family court's denial of the motion to
terminate parental rights. We address these COL and FOF in the same manner.
3
In support of their point of error, Maternal Grandparents also argue
that the family court (1) failed to provide a compelling reason for
guardianship, (2) violated their due process rights, and (3) usurped DHS'
right to prepare its own permanent plan by ordering DHS to prepare a permanent
plan for legal co-guardianship. But, we need not reach these arguments in
light of our decision to vacate the September 30, 2021 Order and remand this
case for further proceedings.

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(1) A child's parent whose rights are subject
to termination is not presently willing
and able to provide the parent's child
with a safe family home, even with the
assistance of a service plan;
(2) It is not reasonably foreseeable that the
child's parent whose rights are subject to
termination will become willing and able
to provide the child with a safe family
home, even with the assistance of a
service plan, within a reasonable period
of time, which shall not exceed two years
from the child's date of entry into foster
care;
(3) The proposed permanent plan is in the best
interests of the child. In reaching this
determination, the court shall:
(A) Presume that it is in the best
interests of the child to be
promptly and permanently placed with
responsible and competent substitute
parents and family in a safe and
secure home; and

(B) Give greater weight to the
presumption that the permanent plan
is in the child's best interest,
the younger the child is upon the
child's date of entry into foster
care; and

(4) The child consents to the permanent plan
if the child is at least fourteen years
old, unless the court consults with the
child in camera and finds that it is in
the best interest of the child to proceed
without the child's consent.

(Emphases added.) Clear and convincing evidence is defined as

the "degree of proof that will produce in the mind of the trier

of fact a firm belief or conviction that the fact sought to be

proved is true. This measure falls between the preponderance

standard of typical civil cases and the beyond-a-reasonable-doubt

standard of criminal cases." HRS § 587A-4.

Here, the family court denied the motion to terminate

parental rights and establish a permanent plan of adoption

because HRS § 587A-33(a)(3) and (4) were not proven by clear and

convincing evidence.

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We first note that Mother and Father stipulated to

subsections (a)(1) and (a)(2). We next note that KY was not "at

least fourteen years old" so subsection (a)(4) was inapplicable

to this case. HRS § 587-33(a)(4). Thus, by citing DHS' failure

to prove subsection (a)(4) as a basis for denying DHS' motion to

terminate parental rights and establish a permanent plan of

adoption, the family court abused its discretion.

Turning to subsection (a)(3), the family court was

tasked with determining whether the Permanent Plan was in KY's
best interests. See HRS § 587A-33(a)(3)(A). In so doing, the

family court was required to presume that it was in KY's best

interest "to be promptly and permanently placed with responsible

and competent substitute parents and family in a safe and secure

home[.]" HRS § 587A-33(a)(3)(A).

Egeberg, DHS' social worker, testified that this case

started when KY "ingested detox medication in December 2018 while

being supervised by" Paternal Grandparents. She further

testified that Maternal Grandparents have provided KY with a

stable setting and can take care of KY. Maternal Grandparents
made clear that KY was their focus. The family court found this

testimony credible.

Murakami, KY's GAL, testified in support of the

Permanent Plan and adoption by Maternal Grandparents. She also

testified that Paternal Grandparents are an important part of

KY's life and she recommends continued visitation with them. The

family court found this testimony credible.

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The family court then concluded that Maternal

Grandparents "are responsible, competent individuals able to

provide [KY] with a safe, secure home." Based on § HRS 587A-

33(a)(3)(A), the family court was required to "[p]resume that it

is in the best interests of [KY] to be promptly and permanently

placed with responsible and competent substitute parents and

family in a safe and secure home."

The family court was also required to "[g]ive greater

weight to the presumption that the permanent plan is in the
child's best interest, the younger the child is upon the child's

date of entry into foster care." HRS § 587A-33(a)(3)(B). KY was

about two years and four months old when he entered foster care.

Thus, the family court should have given great weight to the

presumption that the proposed permanent plan recommending

adoption was in KY's best interests.

Based on the evidence, the family court's denial of

DHS' motion to terminate parental rights and establish a

permanent plan recommending adoption does not align with the

mandatory presumption and the greater weight accorded in
determining whether the permanent plan is in KY's best interests.

And the family court made no findings or conclusions to explain

this divergence.

The family court thus abused its discretion by denying

DHS' motion to terminate parental rights and establish a

permanent plan recommending adoption without explaining how the

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statutory presumptions and weight factored into its analysis, and

how they were rebutted.
IV. CONCLUSION

Based on the foregoing, we vacate the family court's

September 30, 2021 Order and remand this case for further

proceedings consistent with this opinion.

DATED: Honolulu, Hawai#i, April 24, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Francis T. O'Brien,
for Intervenors-Resource /s/ Keith K. Hiraoka
Caregivers-Appellants, Associate Judge
Maternal Grandparents.
/s/ Sonja M.P. McCullen
Erin Lea Lowenthal, Associate Judge
for Intervenor-Appellee,
Paternal Grandmother.

Adriel C.S. Menor and
Julio C. Herrera,
Deputy Attorneys General,
for Petitioner-Appellee,
Department of Human Services.

Renata Foster-Au,
for Mother-Appellee.

Nicole Forelli,
for Father-Appellee.

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