In re: HV and MV. ( 2021 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-DEC-2021
08:19 AM
Dkt. 60 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
IN THE INTEREST OF HV AND MV
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 19-00154)
DECEMBER 30, 2021
GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ.
OPINION OF THE COURT BY NAKASONE, J.
Petitioner-Appellant State of Hawai#i, Department of
Human Services (DHS), appeals from the Orders Concerning Child
Protective Act, filed on November 12, 2020 (November 12, 2020
Payment Order), by the Family Court of the First Circuit (Family
Court).1 Pursuant to Hawaii Revised Statutes (HRS) § 587A-16(b)
(2018) and HRS § 587A-41 (2018),2 the Family Court ordered the
DHS to pay for an evaluation of the alleged natural father of MV3
(Father) to determine whether to appoint a guardian ad litem
(GAL) for him. On March 10, 2021, the Family Court filed its
1
The Honorable John C. Bryant, Jr. presided.
2
These statutes are quoted infra.
3
MV, along with HV, are the subject children in this HRS Chapter
587A Child Protective Act case.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Findings of Fact and Conclusions of Law (FOFs/COLs) for the
November 12, 2020 Payment Order.4
On appeal, the DHS contends that Father's evaluation
for a GAL appointment under HRS § 587A-16(b)5 was not a
4
The March 10, 2021 FOFs/COLs were filed after the DHS's Opening
Brief was filed on January 21, 2021.
5
HRS § 587A-16(b) provides:
[§587A-16] Guardian ad litem. . . .
(b) The court may appoint a guardian ad litem
for an incapacitated adult party, as set forth below:
(1) Upon the request of any party or sua
sponte, the court may order a professional
evaluation of an adult party to determine
the party's capacity to substantially:
(A) Comprehend the legal significance of
the issues and nature of the proceedings
under this chapter;
(B) Consult with counsel; and
(C) Assist in preparing the party's case
or strategy;
(2) If the court orders a professional
evaluation, the party shall be examined by a
physician, psychologist, or other individual
appointed by the court who is qualified to
evaluate the party's alleged impairment:
(A) Unless otherwise directed by the
court, the examiner shall promptly
file with the court a written report
which shall contain:
(i) A description of the nature,
type, and extent of the
party's specific cognitive and
functional capabilities and
limitations;
(ii) An evaluation of the party's
mental and physical condition
and, if appropriate,
educational potential,
adaptive behavior, and social
skills;
(iii) A prognosis for improvement
and a recommendation as to the
appropriate treatment or
habilitation plan; and
(iv) The dates of any assessments
or examinations upon which the
report is based;
(B) Upon the request of any party or sua
2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"service" within the meaning of HRS § 587A-41,6 and therefore,
the Family Court lacked authority to order the DHS to pay for
Father's evaluation.7
We hold that, because this evaluation was a
"professional evaluation" under HRS § 587A-16(b)(1) to determine
Father's need for a GAL in the Family Court proceedings, the
payment provision in HRS § 587A-16(f) applies. The record
reflects that this evaluation was not a "psychological
evaluation" that the DHS would provide as a "service" under HRS §
sponte, and after such hearing as
the court deems appropriate, the
court may appoint a guardian ad
litem for an adult party only after
a determination, by clear and
convincing evidence, that:
(i) The party is an incapacitated
person; and
(ii) The party's identified needs
cannot be met by less
restrictive means, including
the use of appropriate and
reasonably available
assistance.
. . . .
(f) The fees and costs of a guardian ad litem
appointed pursuant to this section may be paid by the
court, unless the party for whom counsel is appointed
has an independent estate sufficient to pay such fees
and costs. The court may order the appropriate parties
to pay or reimburse the fees and costs of the guardian
ad litem and any attorney appointed for the child.
(Bolding in original) (emphasis added).
6
HRS § 587A-41 provides:
[§587A-41] Payment for service or treatment provided to a
party or for a child's care, support, or treatment. (a)
Whenever a service or treatment is provided to a party, or
whenever care, support, or treatment of a child is provided
under this chapter, the court may order the payment of such
expenses by the persons or legal entities who are legally
responsible for the same, after reasonable notice and
hearing as the court directs.
(b) The provisions of section 571-52 and all other
remedies available under the law shall be applicable to
enforce orders issued pursuant to this section.
(Bolding in original) (emphasis added).
7
No other party filed an answering brief.
3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
587A-41. The Family Court erroneously ordered the DHS to pay for
the evaluation for Father in this case, and we reverse.
I. BACKGROUND
This case arose out of proceedings the Family Court
conducted for the DHS's July 8, 2019 petition for temporary
foster custody of the subject children. See FOFs 1 and 4. On
August 4, 2020, Father's counsel requested a GAL be appointed for
him. FOF 9. Pursuant to HRS § 587A-16(b) and based upon
Father's counsel's request, the Family Court ordered Father to
participate in a "psychological evaluation"8 with Dr. Barbara
Higa Rogers (Dr. Higa Rogers) to determine if Father required the
appointment of a GAL. FOF 10.
Dr. Higa Rogers's August 28, 2020 assessment indicated
that the reason for the referral was for a mental health
assessment to evaluate Father's "capacity to substantially: A)
Comprehend the legal significance of the issues and nature of the
proceedings[;] B) Consult with counsel[;] and C) Assist in
preparing the party's case or strategy." Dr. Higa Rogers opined
that Father "could benefit from a GAL at this time," because
Father was "likely to have difficulty in the courtroom fully
understanding what is occurring and will likely experience
difficulty assisting his attorney." The report concluded: "the
primary goal of this exam was to address [Father's] potential
need of a GAL, which at this time, this examiner supports. In
the context of his mental health, significant concerns arise but
are beyond the scope of this evaluation."
On September 16, 2020, the Family Court conducted a
hearing to determine whether the DHS would agree to pay for Dr.
Higa Rogers's $650.00 invoice, and the DHS did not agree. FOF
11. On September 29, 2020, the Family Court held a contested
hearing on the issue of which entity was responsible for paying
Dr. Higa Rogers's invoice: the DHS or the Family Court. FOF 12.
At the hearing, the DHS argued that Father's evaluation for a GAL
8
The Family Court used the term "psychological evaluation" to refer
to the HRS § 587A-16(b) GAL evaluation. Because HRS § 587A-16(b) uses the term
"professional evaluation" and not "psychological evaluation," we use the
statutory terminology of "professional evaluation" here.
4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
was not requested by the DHS, was not part of the DHS service
plan for Father, and that the Family Court had, in practice, paid
for these evaluations in the past. Father's counsel argued that
the DHS should pay for the invoice. Over the DHS's objection,
the Family Court ordered the DHS to pay for the invoice. FOF 13.
On November 12, 2020, the DHS's Motion for
Reconsideration on the payment order was denied.9 FOF 14. The
Family Court subsequently entered FOFs/COLs that included the
following pertinent to this appeal:
[(FINDINGS OF FACT)]
10. Based upon [Father's Counsel's] request and
pursuant to Sec. 587A-16(b), Hawaii Revised Statutes
("HRS"), the Court ordered that [Father] participate in a
psychological evaluation by Dr. BARBAR [sic] HIGA-ROGERS.
This evaluation was a service to be provided to [Father] in
order to determine if he required the appointment of a
guardian ad litem. No order was entered as to payment for
the psychological evaluation.
. . . .
[(CONCLUSIONS OF LAW)]
1. Sec. 587A-41, HRS, allows the Family Court
to order payment of expenses when those expenses relate to
a "service or treatment to a party . . . ." Payment for these
expenses may be ordered to be made by the "legal entities
who are legally responsible for the same, after reasonable
notice and hearing as the Court directs."
2. Sec. 587A-16(b), HRS, governs the
appointment of a guardian ad litem for an incapacitated
adult. The fees and costs of a guardian ad litem, after
appointment, may be paid by the Family Court. See. [sic]
Sec 587A-16(f), HRS.
3. Nothing in Section 587A-16, HRS, states,
or even infers, that the cost of a psychological evaluation
prior to the appointment of a guardian ad litem for an
incapacitated adult is to be borne by Family Court.
4. DHS has provided no statutory or case-law
support for this Court to conclude that Family Court is
liable for such a fee or cost.
5. The psychological evaluation as conducted
in this case is a "service provided to a party" under Sec.
587A-41, HRS. It is a natural and necessary process and
expense that has to be conducted for the DHS to meet its
requirement of "reasonable efforts" in each and every case.
Without such an evaluation, the case cannot move forward to
9
The November 12, 2020 Payment Order states: "DHS' Motion for
Reconsideration and to stay order is denied. DHS shall pay the invoice for
Dr. Barbara Higa Rogers within two (2) weeks."
5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
either reunification or permanency.
6. Furthermore, without such an evaluation, DHS
would be unable to meet its many obligations as delineated
in Sec. 587A-15, HRS.
7. As such, the Court concludes and orders that
Dr. HIGA-ROGERS' invoice in the amount of $650.00 is a cost
properly paid by DHS.
(Underscoring in original). The DHS timely appealed the November
12, 2020 Payment Order.
II. STANDARDS OF REVIEW
Statutory Interpretation
"Statutory interpretation is a question of law
reviewable de novo." JD v. PD, 149 Hawai#i 92, 96, 482 P.3d 555,
559 (App. 2021) (citation omitted). In construing statutes, we
observe the following principles:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit 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. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
Id. (citation omitted).
Conclusions of Law
"The family court's conclusions of law are ordinarily
reviewed de novo, under the right/wrong standard, 'and are freely
reviewable for their correctness.'" JW v. RJ, 146 Hawai#i 581,
585, 463 P.3d 1238, 1242 (App. 2020) (citing Fisher v. Fisher,
111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)).
III. DISCUSSION
A. Because this evaluation was a "professional
evaluation" to determine Father's need for a
GAL in the Family Court proceedings, the
payment provision of HRS § 587A-16(f) applies.
The DHS contends that "[t]he family court is
statutorily responsible for the costs for a GAL for a parent as
6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
outlined in HRS § 587A-16(f), which should include an evaluation
under this chapter."
At issue in this appeal is whether the subsection (f)
payment provision of HRS § 587A-16 applies to the subsection
(b)(1) professional evaluation ordered in this case. We conclude
that it does.
HRS § 587A-16(f) provides: "The fees and costs of a
guardian ad litem appointed pursuant to this section may be paid
by the court . . . ." The Family Court ordered an evaluation for
Father "pursuant to Sec. 587A-16(b)" to determine whether he
required the appointment of a guardian ad litem. FOF 10. Thus,
this evaluation was a "professional evaluation" of Father under
HRS § 587A-16(b)(1), to determine Father's need for a GAL to aid
him in the proceedings before the Family Court. A professional
evaluation determines the party's capacity to comprehend the
proceedings, consult with counsel, and assist in case
preparation. HRS § 587A-16(b)(1)(A)-(1)(C).
Here, Dr. Higa Rogers' evaluation was ordered by the
Family Court under HRS § 587A-16(b)(1), following the September
29, 2020 hearing where Father's counsel "requested that [Father]
be evaluated for a guardian ad litem." The evaluation report
stated that the reason for the referral was "to evaluate
[Father's] capacity to substantially: A) Comprehend the legal
significance of the issues and nature of the proceedings[;] B)
Consult with counsel[;] and C) Assist in preparing the [Father]'s
case or strategy." These reasons are the statutory factors that
must be assessed to determine whether to appoint a GAL under HRS
§ 587A-16(b)(1). HRS § 587A-16(f) plainly applies to the
subsection (b)(1) professional evaluation in this case. See JD,
149 Hawai#i at 96; 482 P.3d at 559.
In COL 2, the Family Court concluded that the HRS §
587A-16(f) payment provision applied only after a GAL is
appointed, as follows: "the fees and costs of a [GAL], after
appointment, may be paid by the Family Court." (Emphasis added).
The actual language of HRS § 587A-16(f), however, does not
expressly limit the Family Court's payment authority to the
period "after appointment" of a GAL. Contrary to the Family
7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Court's conclusion, the statute includes fees and costs for a GAL
"appointed pursuant to this section." HRS § 587A-16(f). This
may include fees and costs, prior to an actual appointment of a
GAL, that are necessarily incurred as a court determines whether
to appoint a GAL under HRS § 587A-16(b).
We conclude that the payment provision in HRS § 587A-
16(f) applies to the fee for Dr. Higa Rogers's subsection (b)(1)
professional evaluation of an adult party like Father, who may be
incapacitated and need an appointed GAL. The Family Court's
conclusions (COLs 2, 3, and 4) interpreting HRS § 587A-16(f) as
inapplicable to this case, were erroneous. See JW, 146 Hawai#i
at 585, 463 P.3d at 1242.
B. The record reflects that this evaluation was
not a "psychological evaluation" that the DHS
would provide as a "service" under the HRS §
587A-41 payment statute.
In COLs 1 and 5, the Family Court quoted HRS § 587A-41,
and concluded that the "psychological evaluation as conducted in
this case is a 'service provided to a party' under Sec. 587A-41,"
because the examination "is a natural and necessary process and
expense" for "the DHS to meet its requirement of 'reasonable
efforts' in each and every case." COL 5. On appeal, the DHS
contends that "[a]n evaluation for a GAL for a parent is not a
'service' under [HRS] § 587A-41(a);" and that the Family Court's
conclusion was wrong.
"[T]he family court's jurisdiction is not so broad that
it extends to the ability to simply order anyone to pay for
needed services. Obviously, there must be a legal basis
establishing an obligation to pay." In re Doe, 96 Hawai#i 272,
286, 30 P.3d 878, 892 (2001). The DHS acknowledges that it
"routinely pays for psychological evaluations, which are outlined
in the DHS service plans and are designed to assist the DHS in
identifying the existing safety issues and the services necessary
to address those safety issues." Citing Doe, 96 Hawai#i at 286,
30 P.3d at 892, the DHS asserts that "the DHS is not legally
obligated to pay for evaluations for GALs for parents" in Child
Protective Act cases under HRS Chapter 587A. The DHS argues that
8
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
GAL evaluations are "distinguishable" from psychological
evaluations "used by the DHS to determine which services" are
needed "to address the identified safety issues and reunify the
child with the parent[.]" The DHS's argument is persuasive.
HRS § 587A-41 provides for payment to be made by the
"legally responsible" entity "[w]henever a service or treatment
is provided to a party . . . under this chapter . . . ." Under
HRS Chapter 587A, the Child Protective Act, the results of
psychological evaluations are expressly enumerated in HRS § 587A-
7(a)(5) (2018)10 as a factor that must be considered in
evaluating a family member's ability to provide a safe family
home for the child. A psychological evaluation may also be among
the services that the DHS provides to facilitate the return of
the child to a safe family home. See HRS § 587A-27 (2018).11
Here, the Family Court expressly ordered Father's
evaluation pursuant to the GAL statute, HRS § 587A-16, which made
it a "professional evaluation" under HRS § 587A-16(b)(1), and not
a psychological evaluation to assess Father's ability, or lack
10
HRS § 587A-7(a)(5) provides:
[§587A-7] Safe Family home factors.
(a) The following factors shall be fully considered
when determining whether a child's family is willing and
able to provide the child with a safe family home:
. . . .
(5) Results of psychiatric, psychological, or
developmental evaluations of the child, the alleged
perpetrators, and other family members who are parties[.]
(Bolding in original).
11
HRS § 587A-27 provides:
§587A-27 Service plan.
(a) The service plan shall provide:
(1) The specific steps necessary to facilitate the
return of the child to a safe family home, if the proposed
placement of the child is in foster care under foster
custody. These specific steps shall include treatment and
services that will be provided, actions completed, specific
measurable and behavioral changes that must be achieved, and
responsibilities assumed . . . .
(Bolding in original) (emphases added).
9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
thereof, to provide a safe family home. Dr. Higa Rogers's
evaluation assessed the statutory factors to determine Father's
capacity under HRS § 587A-16(b)(1)(A),(B) and (C); the evaluation
did not assess whether Father was "willing and able to provide
the child with a safe family home" under HRS § 587A-7(a)(5).
Accordingly, COL 5's conclusion, that the evaluation in this case
was a "service provided to a party" subject to the payment
provision in HRS § 587A-41, was erroneous. See JW, 146 Hawai#i
at 585, 463 P.3d at 1242.
IV. CONCLUSION
For the foregoing reasons, we conclude that the Family
Court erroneously ordered the DHS to pay for the HRS § 587A-16(b)
professional evaluation in this case. Rather, HRS § 587A-16(f)
is applicable.
Accordingly, the Orders Concerning Child Protective
Act, filed on November 12, 2020 by the Family Court of the First
Circuit, are reversed with respect to the Family Court's order to
the DHS to pay for the invoice of Dr. Barbara Higa Rogers.
On the brief: /s/ Lisa M. Ginoza
Chief Judge
Lianne L. Onishi
Deputy Attorney General /s/ Katherine G. Leonard
for Petitioner-Appellant Associate Judge
Department of Human Services
/s/ Karen T. Nakasone
Associate Judge
10