In Re: AG1 and AG2.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2024
08:13 AM
Dkt. 61 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

IN THE INTEREST OF AG1 AND AG2

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(FC-S NO. 22-0069)

JANUARY 26, 2024

HIRAOKA, PRESIDING JUDGE, NAKASONE AND MCCULLEN, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

This case concerns the Child Protective Act, Hawaii

Revised Statutes (HRS) Chapter 587A. We must decide whether a

biological parent whose parental rights have been terminated

under HRS § 587A-33 must be summoned if another petition about

the child is later filed in the family court. We hold that HRS

§ 587A-13 does not require that a parent whose parental rights

have been terminated be summoned if a subsequent petition

concerning the child is filed.
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I. BACKGROUND

Mother and Father (collectively, the Parents) are the

biological parents of AG1 and AG2 (Children). Parents' parental

rights in Children were terminated on March 29, 2019. The order

terminating Parents' parental rights stated:
13 Pursuant to HRS § 587A-33(b)(5)[1] [Mother] and
[Father] are excluded from participating in adoption
or other subsequent proceedings and he/she/they shall
not be noticed of future hearings and he/she/they
shall not appear at future hearings unless he/she/they
receive further legal notice requiring such
appearance[.]

The state Department of Human Services (DHS) was granted

permanent custody of Children. Children were placed with a

Guardian.

On July 27, 2022 (after Parents' parental rights were

terminated), DHS filed a Petition for temporary foster custody of

AG1 and family supervision of AG2. The Petition alleged that

Guardian had physically abused AG1. DHS also reported threatened

abuse of AG2. Guardian and Parents were summoned to appear

before the Family Court of the Third Circuit. The Family Court

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HRS § 587A-33 (2018) provides, in relevant part:

(b) If the court determines that the criteria [for
terminating parental rights] set forth in subsection (a) are
established by clear and convincing evidence and the goal of
the permanent plan is for the child to be adopted or remain
in permanent custody, the court shall order:

. . . .

(5) The entry of any other orders the court deems to
be in the best interests of the child, including
restricting or excluding unnecessary parties
from participating in adoption or other
subsequent proceedings.

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appointed the Legal Aid Society of Hawai#i (LASH) to be

Children's guardian ad litem.

On September 7, 2022, LASH moved to dismiss Parents or

exclude them from the proceeding. The Family Court denied the

motion.2 LASH moved for reconsideration. The Family Court

denied reconsideration and entered findings of fact and

conclusions of law. The court concluded:
4. Even though [Father]'s and [Mother]'s parental
rights regarding the Subject Children were terminated . . .
pursuant to HRS § 587A-33, they are nevertheless entitled to
notice in this . . . case pursuant to HRS § 587A-13.

5. Even though [Father]'s and [Mother]'s parental
rights regarding the Subject Children were terminated . . .
pursuant to HRS § 587A-33, they are nevertheless entitled to
participate in this matter because each received a summons
requiring their appearances, and each of them is a "parent"
and "party" as those terms are defined in HRS § 587A-4.
6. The statutory language and definitions set forth
in HRS §§ 587A-4 and 587A-13 control as to whether [Father]
and [Mother] are entitled to notice of and the right to
participate as parties in this case. Accordingly, the Court
declines to engage in any further analysis of the other
arguments presented by [LASH], including whether the
inclusion of [Father] and [Mother] as parties to this case
is in the Subject Children's best interests under HRS
§ 571-46(b).

The Family Court let LASH file this interlocutory

appeal. LASH argues that the Family Court erred by denying the

motion to dismiss Parents or exclude them from the proceeding.

II. STANDARD OF REVIEW

Interpretation of a statute is a question of law we

review de novo. Barker v. Young, 153 Hawai#i 144, 148, 528 P.3d

217, 221 (2023). We start with the statute's language; "implicit

2
The Honorable Jeffrey W. Ng presided.

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in the task of statutory construction is our foremost obligation

to ascertain and give effect to the intention of the legislature,

which is to be obtained primarily from the language contained in

the statute itself." Id. (citation omitted). But "when there is

doubt, doubleness of meaning, or indistinctiveness or uncertainty

of an expression used in a statute, . . . the meaning of the

ambiguous words may be sought by examining the context, with

which the ambiguous words, phrases, and sentences may be

compared, in order to ascertain their true meaning." Id.
(cleaned up). "The legislature is presumed not to intend an

absurd result, and legislation will be construed to avoid, if

possible, inconsistency, contradiction, and illogicality." State

v. Vliet, 91 Hawai#i 288, 294, 983 P.2d 189, 195 (1999) (cleaned

up).

III. DISCUSSION

The Family Court relied on HRS §§ 587A-4 and -13 to

conclude that Mother and Father were "entitled to notice of and

the right to participate as parties in this case." HRS § 587A-13

(2018) provides:
(a) After a petition has been filed, the court shall issue
a summons requiring the presence of the parents and other
persons to be parties to the proceeding except the child, as
follows:
. . . .
(3) The summons shall state: "YOUR PARENTAL AND
CUSTODIAL DUTIES AND RIGHTS CONCERNING THE CHILD
OR CHILDREN WHO ARE THE SUBJECT OF THE ATTACHED
PETITION MAY BE TERMINATED IF YOU FAIL TO APPEAR
ON THE DATE SET FORTH IN THIS SUMMONS."

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HRS § 587A-4 (2018) provides:
As used in this chapter, unless the context clearly
indicates otherwise:

. . . .

"Parent" means any legal parent of a child; the birth
mother, unless the child has been legally adopted; the
adjudicated, presumed, or concerned birth father of the
child as provided in section 578-2(a)(5), unless the child
has been legally adopted; or the legal guardians or any
other legal custodians of the child.
"Party" means an authorized agency; a child who is
subject to a proceeding under this chapter; the child's
parents and guardian ad litem; any other person who is
alleged in the petition or who is subsequently found at any
child protective proceeding to be encouraging, causing, or
contributing to the acts or conditions that brought the
child within the scope of this chapter; and may include any
other person, including the child's current foster parent or
current resource family, if the court finds that such
person's participation is in the best interest of the child;
provided that the court may limit a party's right to
participate in any child protective proceeding if the court
deems such limitation of such party's participation to be
consistent with the best interests of the child and such
party is not a family member who is required to be summoned
pursuant to section 587A-13, except as otherwise provided in
this chapter.

(Emphasis added.)

DHS contends that the plain language of HRS § 587A-13

requires that notice be given to all "parents," defined by HRS

§ 587A-4 to include the birth mother and birth father unless the
child has been legally adopted, even if their parental rights

have been terminated. HRS § 587A-4 defines "parents" as the

child's birth mother and birth father, "unless the context

clearly indicates otherwise[.]" (Emphasis added.)

We hold that the context of HRS § 587A-13 does not

require that birth parents whose parental rights have been

terminated be summoned in further proceedings concerning the

child. The statute states that if a summoned parent fails to

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appear at the proceeding for which the summons was issued, the

parent's parental rights may be terminated. For a birth parent

whose parental rights have been terminated, the sanction means

nothing, is inconsistent with and contradicts the order

terminating parental rights, and is illogical. See Vliet, 91

Hawai#i at 294, 983 P.2d at 195. Parents' parental rights in

Children were terminated before DHS filed the Petition. DHS was

not required by HRS § 587A-13 to issue summons to Parents, who

had no right to participate in the proceeding (unless and until

their parental rights are reinstated by the Family Court).

IV. CONCLUSION

For these reasons: (1) the "Orders Concerning Child

Protective Act[,]" entered on October 13, 2022, are vacated in

part to the extent they deny LASH's motion to dismiss or exclude

Parents; (2) the "Order Denying in Part and Granting in Part

Guardian Ad Litem's Motion for Reconsideration and/or Relief from

Orders Concerning Child Protective Act[,]" entered on November 1,

2022, is vacated in part to the extent it denies LASH's motion

for reconsideration; and (3) the "Findings of Fact and

Conclusions of Law Regarding Guardian Ad Litem's Motion to

Dismiss and/or Exclude [Parents][,]" entered on November 7, 2022,

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is vacated. This case is remanded to the Family Court for

further proceedings consistent with this opinion.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Scott K.D. Shishido,
Jessica C.M. Uchida, /s/ Karen T. Nakasone
for Legal Aid Society of Associate Judge
Hawai#i, Guardian Ad Litem-
Appellant for Minor Children. /s/ Sonja M.P. McCullen
Associate Judge
Julio C. Herrera,
Patrick A. Pascual,
Kellie M. Kersten,
Kenneth G. Goodenow,
Deputy Attorneys General,
State of Hawai#i,
for Petitioner-Appellee
The Department of Human Services.

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