In re: LI ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-MAY-2023
09:36 AM
Dkt. 149 MO
NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX,
CAAP-XX-XXXXXXX, AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
NO. CAAP-XX-XXXXXXX
IN THE INTEREST OF LI
(FC-S NO. 18-00034)
NO. CAAP-XX-XXXXXXX
IN THE MATTER OF THE GUARDIANSHIP OF LI
(FC-G NO. 18-1-6221)
NO. CAAP-XX-XXXXXXX
IN THE MATTER OF THE GUARDIANSHIP OF LI
(FC-G NO. 20-1-6243)
NO. CAAP-XX-XXXXXXX
IN THE MATTER OF ADOPTION OF LI
(FC-A NO. 20-1-6175)
NO. CAAP-XX-XXXXXXX
IN THE MATTER OF ADOPTION OF LI
(FC-A NO. 21-1-6112)
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and McCullen, JJ.)
This case involves competing petitions for the adoption
of a child which were filed by the child's paternal aunt and by
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the child's resource caregiver. In this consolidated appeal,
Appellant/Cross-Appellee Mother (Mother) appeals and
Intervenor/Appellee-Cross-Appellant EI (Paternal Aunt) cross-
appeals from the "Orders Concerning Child Protective Act" entered
by the Family Court of the First Circuit (Family Court)1 on
September 2, 2021.2 The Family Court determined it is in LI
(Child's) best interest to be adopted by Petitioner/Resource
Caregiver-Appellee IC (RCG). On October 18, 2021, the Family
Court entered Findings of Fact and Conclusions of Law (FOFs/COLs)
for the contested placement trial.
On appeal, Mother contends that under Hawaii Revised
Statutes (HRS) § 587A-15(c)(2) (2018) she had the right to
consent or agree to Paternal Aunt's guardianship and/or adoption
of Child prior to the termination of Mother's parental rights.
Mother asserts she agreed to guardianship and then adoption of
Child by Paternal Aunt, and argues the Family Court should have
considered Child's permanent placement before terminating
Mother's parental rights. Additionally Mother contends RCG
and/or Appellee-Guardian Ad Litem (GAL) failed to meet their
burden to show by a preponderance of the evidence that placement
of Child with RCG is in Child's best interest. Relatedly, Mother
challenges FOFs 183 and 225, and COLs 16, 20-23, 29, 30, 34, 35,
37, and 38.3
1
The Honorable Andrew T. Park presided.
2
This court granted consolidation by order filed December 15, 2021,
and the appeals were consolidated under CAAP-XX-XXXXXXX. The remaining
appeals arise from Paternal Aunt's appeal of the following orders entered by
the Family Court on September 10, 2021: (1) CAAP-21-521 arises from the Order
Denying Petition for Appointment of Guardian of a Minor in FC-G No.18-1-6221;
(2) CAAP-21-522 arises from the Order Denying Petition for Appointment of
Guardian of a Minor in FC-G No.20-1-6243; (3) CAAP-21-523 arises from the
Order Denying Petition for Adoption in FC-A No.20-1-6175; and (4) CAAP-21-524
arises from the Findings and Order Setting Further Hearing in FC-A No.21-1-
6112.
3
Mother also challenges FOFs 50, 55, 56, 135-37, 148, 150, 351, 377,
390, 391, 395, 398-401, 403, 405, 406, 409-12, 414-17, 421, and 424-30. Mother
asserts her objection to the FOFs she lists is "based on the arguments as set
forth in her Opening Brief[,]" or based on the trial testimony of the
witnesses "generally". However, Mother presents no discernible argument as to
(continued...)
2
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On cross-appeal, Paternal Aunt contends the Family
Court erred in: (1) failing to consider ethnicity and culture as
factors in its best interest of the child analysis and failing to
treat kinship as a substantial factor; (2) untimely considering
Paternal Aunt's petitions for guardianship and adoption; and (3)
granting RCG's request for a continuance of the permanent
placement trial on January 5, 2021.4
3
(...continued)
why these FOFs are clearly erroneous and does not refer to these challenged
FOFs in her arguments section. This court is "not obliged to address matters
for which the appellants have failed to present discernible arguments." Hussey
v. Say, 139 Hawai#i 181, 191, 384 P.3d 1282, 1292 (2016) (citation omitted).
4
Paternal Aunt also challenges a multitude of FOFs as recitations of
testimony that should be vacated because they are not findings of fact.
Specifically, Paternal Aunt challenges FOFs 78-82, 86-88, 91, 110, 130,
134-36, 138-39, 143, 147-52, 167-73, 175-79, 181-82, 185-90, 195, 197,
200-201, 203-15, 217-24, 226, 233, 237-39, 241-43, 246-47, 251, 253-56,
263-65, 267-78, 280-81, 289, 307-14, 316-18, 322-25, 328, 330, 335-36, 340,
343-44, 346-53, 357, 360-69, 371-76, and 379-83. Paternal Aunt, citing In re
Doe, 96 Hawai#i 255, 259, 30 P.3d 269, 273 (App. 2001), challenges these FOFs
as mere "recitations of testimony," and argues they should be vacated. We
agree that the Family Court's statement of the evidence, by itself, is not a
finding of fact. See id.However, as we explained in Doe, although we do not recommend doing it
this way, we conclude that FOFs 93, 117, 140, 153, 183, 225, 279, 292, 354,
384, which state the Family Court's determinations as to credibility and
resolve conflicting evidence, validly convert the recitations of testimony
into FOFs. See id. (holding that the family court's findings which in effect
state that the court found the stated evidence to be credible evidence of the
facts validly convert statements of the evidence into FOFs); In re Adoption of
HA, 143 Hawai#i 64, 77, 422 P.3d 642, 655 (App. 2017) (explaining that
findings of fact which primarily contain recitals of witness testimony with no
actual statement of the court's determination as to credibility, weight, or
resolution of conflicting evidence do not properly state findings).
Paternal Aunt also challenges FOFs 390, 398-403, 406, 408-17, 421, 424,
427-29 and COLs 8, 12, 13, 20-22, 25, 29, 30, and 34 as erroneous or
unsupported by the evidence but fails to provide any corresponding argument
regarding these FOFs and COLs. Instead, Paternal Aunt appears to challenge
these FOFs and COLs generally in the context of her challenge to the Family
Court's best interest of the child analysis. We address these FOFs and COLs in
considering her arguments regarding the best interest of the child.
Paternal Aunt further challenges FOFs 109, 110, 370, 377, and 378 as
clearly erroneous and provides some argument to support her assertion of
error. However, based on the record, these FOFs are either not clearly
erroneous or they reflect the testimony of the witnesses and are thus not
clearly erroneous. See In re Doe, 95 Hawai#i at 183, 20 P.3d 616, 623 (2001).
Similarly, Paternal Aunt argues that FOFs 425, 426, and 430 are
erroneous because they are actually COLs. However, "[a] conclusion of law is
not rendered immune from review because labelled [sic] a finding of fact."
(continued...)
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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, we resolve Mother's
and Paternal Aunt's points of error as follows, and affirm.
I. Background
The following factual and procedural background is
taken from the record and the Family Court's unchallenged FOFs
which are binding on appeal.5
On February 18, 2018, Appellee/Cross-Appellee
Department of Human Services (DHS) assumed placement
responsibility of Child via police protective custody because
Mother had been arrested in connection with the death of Child's
biological father (Father) and Child was left with no legal
caretaker. On February 21, 2018, DHS filed a petition for
temporary foster custody of Child, which initiated the underlying
case, FC-S No.18-00034. At that time, Child was a little over
two and a half years old.
On April 9, 2018, Child entered Foster Care and was
moved to the home of RCG. At the time of placement, RCG, along
with her long-time partner (RCG's Partner), were provisionally
approved as resource caregivers and Child remained with RCG
throughout the proceedings.6
In September 2018, Paternal Aunt, a California
resident, filed her Petition for Appointment of a Guardian of a
4
(...continued)
Molokoa Village Dev. Co. v. Kauai Elec. Co., 60 Haw. 582, 595-96, 593 P.2d
375, 384 (1979) (citing 9 Wright & Miller, Federal Practice and Procedure:
Civil § 2588 (1971)). Paternal Aunt fails to provide any arguments regarding
these FOFs and thus we decline to address them.
Finally, Paternal Aunt challenges all FOFs relating to expert testimony
as "incomplete" and FOFs 112 and 392 as vague. However, the trial judge is
only required to make brief, definite, pertinent findings. State v. Ramos-
Saunders, 135 Hawai#i 299, 304-05, 349 P.3d 406, 411-12 (App. 2015).
5
Unchallenged findings of fact are binding on appeal. In re Doe, 99
Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
6
RCG and RCG's Partner live together with RCG's four biological
children, three of whom were fathered by RCG's Partner and one of whom is from
a prior relationship.
4
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Minor in the Family Court in FC-G No.18-1-6221. On April 18,
2019, an ICPC7 home study was completed and Paternal Aunt's home
in California was approved as a potential placement for Child.
In September 2020, RCG filed a Guardianship Petition
seeking guardianship over Child in FC-G No.20-1-6243. On
December 24, 2020, Paternal Aunt filed a Petition for Adoption
seeking to adopt Child in FC-A No.20-1-6175.
On March 3, 2021, Mother stipulated to the termination
of her parental rights and the Family Court ruled that Mother
would remain a party and would be permitted to participate in the
contested placement trial. On May 13, 2021, RCG filed a Petition
for Adoption seeking to adopt Child in FC-A No.21-1-6112.
After a seven day trial regarding Child's permanent
placement, held on May 25-27, June 1, June 23, and July 19-20,
2021, the Family Court entered its "Orders Concerning Child
Protective Act" on September 2, 2021. The Family Court
determined, inter alia, that RCG proved by a preponderance of the
evidence that DHS's recommendation to place Child with Paternal
Aunt was not in the best interest of Child; it is in Child's best
interest to be adopted by RCG; and it is not in Child's best
interest to be removed from Child's current placement with RCG to
be placed with Paternal Aunt in California.8
On October 18, 2021, the Family Court entered its
FOFs/COLs, consisting of four-hundred and thirty FOFs and thirty-
eight COLs.
Both Mother and Paternal Aunt appealed.
7
ICPC is an acronym for the Interstate Compact on Placement of
Children. ICPC provides for the legal transport of a child between states in
a foster or adoption placement. See HRS Chapter 350E (2015).
8
The Family Court made numerous findings on why adoption by RCG was in
Child's best interest. The Family Court's unchallenged FOFs in its analysis
of the best interest of Child provide that, inter alia, Child has been in
RCG's care for more than three years and has thrived in RCG's care; Child is
strongly attached to RCG and RCG's Partner, they are strongly bonded to Child,
and they are Child's psychological parents; Child is also strongly bonded to
RCG's children and views them as her brothers; and both RCG and RCG's Partner
have extended family living in Hawai#i and Child has relationships on both
sides of their family that would be lost if she were to move to California.
Further, although challenged by Mother, the Family Court found that RCG and
RCG's Partner have worked to maintain Child's connections with her family and
RCG credibly testified she would do so in the future.
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II. Standards of Review
A. Family Court Decisions
"The 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." Kakinami v. Kakinami,
127 Hawai#i 126, 136, 276 P.3d 695, 705 (2012) (citation
omitted). "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."
In re Adoption of HA, 143 Hawai#i at 74, 422 P.3d at 652.
Additionally, "[t]he family court's determination of
what is or is not in a child's best interests is reviewed on
appeal for clear error." Id. at 75, 422 P.3d at 653 (citation
omitted). "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." Id.
(citation omitted).
B. Findings of Fact and Conclusions of Law
The family court's findings of fact are reviewed under the
clearly erroneous standard. A finding of fact 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.
The family court's conclusions of law are reviewed de novo.
Balogh v. Balogh, 134 Hawai#i 29, 38, 332 P.3d 631, 640 (2014)
(quoting Kakinami, 127 Hawai#i at 136, 276 P.3d at 706) (internal
quotation marks omitted).
C. Motions to Continue
"We review a trial court's decision to grant or deny a
motion to continue for an abuse of discretion." Onaka v. Onaka,
112 Hawai#i 374, 378, 146 P.3d 89, 93 (2006).
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III. Discussion
A. Mother's Rights Were Not Violated
Mother and Paternal Aunt contend the Family Court
should have granted Paternal Aunt's petition for guardianship
and/or adoption because Mother consented prior to the termination
of her parental rights. We disagree.
Mother contends she had the fundamental right to agree
to Paternal Aunt's guardianship of Child under HRS § 560:5-204.
HRS § 560:5-204 (2018) provides, in pertinent part:
(b) The court may appoint a guardian for a minor if the
court finds the appointment is in the minor's best interest,
and:
(1) The parents consent;
(2) All parental rights have been terminated; or
(3) The parents are unwilling or unable to exercise
their parental rights.
(Emphases added.)
Mother also contends she had the right to consent to
adoption under HRS § 587A-15(c)(2), which provides,
(c) Unless otherwise provided in this section or as
otherwise ordered by the court, a child's family shall
retain the following rights and responsibilities after a
transfer of temporary foster custody or foster custody, to
the extent that the family possessed the rights and
responsibilities prior to the transfer of temporary foster
custody or foster custody:
. . .
(2) The right to consent to adoption, to marriage, or to
major medical or psychological care or treatment[.]
(Emphases added.)
Adoption proceedings are governed by HRS Chapter 578.
In re Adoption of HA, 143 Hawai#i at 75, 422 P.3d at 653. HRS
§ 578-8(a) (Supp. 2019) sets forth requirements for entering an
adoption decree which provides, in pertinent part:
(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:
. . .
(4) The adoption will be for the best interests of the
individual[.]
(Emphases added.)
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Here, Mother and Paternal Aunt appear to assert that
Mother's right to consent to guardianship and/or adoption means
that the Family Court was required to grant Paternal Aunt's
petitions. However, parental consent is not the sole factor, and
the Family Court was required to consider the best interest of
Child before granting guardianship under HRS § 560:5-204 or
adoption under HRS § 578-8(a).9 Mother and Paternal Aunt present
no argument as to how consideration of Paternal Aunt's petitions
prior to the termination of Mother's parental rights would have
affected or changed the Family Court's best interest of the child
analysis. Moreover, although Mother's parental rights had been
terminated by stipulation in March 2021, the Family Court ruled
that Mother would remain a party and would be permitted to
participate in the contested placement trial. The trial was held
starting in May 2021, and Mother was represented by counsel and
participated in the trial.
Finally, Mother and Paternal Aunt also contend the
Family Court did not timely consider Paternal Aunt's petition for
guardianship given Mother's consent to guardianship in 2018.
This argument is without merit. Based on our review of the
record, Mother did not give her consent to Paternal Aunt's
guardianship of Child in 2018. Instead, Mother wanted Child
placed with a maternal family friend who resided in California.
The Family Court's uncontested FOF 31 states, "DHS requested an
ICPC home study for a non-relative family friend of Mother's who
lived in California, but the request was denied on January 23,
2019, when that friend indicated that she was no longer able to
care for [Child]." The Family Court's uncontested FOF 100 states
9
To the extent Mother contends the Family Court erred procedurally by
terminating her parental rights prior to considering Child's adoption, we note
that Mother did not appeal the Order Terminating Parental Rights entered by
the Family Court on March 31, 2021. Mother stipulated to the termination of
her parental rights and the Order Terminating Parental Rights states,
"[Mother] intelligently, knowingly and voluntarily stipulated to permanent
custody and the permanent plan dated March 25, 2020[.]" Moreover, Mother fails
to cite to any authority to support her contention that the Family Court was
required to first make an adoption or guardianship determination prior to the
termination of Mother's parental rights.
8
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"Mother was not agreeable to guardianship for Paternal Aunt until
after the friend withdrew from consideration."
Paternal Aunt also argues that the Family Court should
have granted her guardianship petition in 2019, after the ICPC
was approved for her home because Mother consented to Paternal
Aunt's guardianship. As explained above, Mother's consent alone
was insufficient for granting guardianship. Moreover, Mother did
not consent to Paternal Aunt's guardianship in 2019, and it was
not until a hearing on June 18, 2020, that Mother consented to
Paternal Aunt's permanent guardianship. Thereafter, Paternal
Aunt filed a petition for adoption with Mother's consent on
December 24, 2020. The Family Court set the permanent placement
trial to consider guardianship and/or adoption the following
month in January 2021. Subsequently, to address an expert report
received in December 2020, the court continued the trial to May
25, 2021, less than six months after the petition for adoption
was filed.
Given the record in this case, the Family Court did not
violate Mother's rights, and further, the court's consideration
of Child's permanent placement was not untimely.
B. Best Interest of Child
Mother and Paternal Aunt assert the Family Court erred
in determining Child's adoption by RCG is in the best interest of
the child. Mother and Parental Aunt disagree with the Family
Court's credibility determinations and the weight of the
evidence.
Specifically, Mother contends the evidence presented
during the contested placement trial showed that it is in Child's
best interest to be adopted by Paternal Aunt. In support of her
argument, Mother cites the expert testimony regarding Child's
placement by Dr. Irada Wattanavitukul (Dr. Wattanavitukul) and
Dr. Steven Choy (Dr. Choy).10 Similarly, Paternal Aunt argues
10
On August 5, 2019, Child began therapy with Family Programs Hawaii.
Her regular therapist was Dr. Wattanavitukul, who was supervised by Dr. Choy.
9
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the Family Court blatantly abused its discretion by
"disregard[ing] the great weight of expert testimony in favor of
kin[.]" Paternal Aunt also argues the Family court gave kinship,
ethnicity and culture inadequate weight in determining the best
interest of Child.
However, the Family Court found in FOFs 183 and 225
that Dr. Wattanavitukul and Dr. Choy's testimony regarding
Child's placement with Paternal Aunt and the effect of such
placement on Child were not credible.11 The Family Court
accorded weight to certain witnesses over Dr. Wattanavitukul and
Dr. Choy, including Michelle Moorhead (Moorhead), who had been
Child's GAL from the beginning of the case and who supported
Child's adoption with RCG at the placement trial.12
"It is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of evidence; this is the province of the trier of
fact." Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360
(2006) (citation omitted). To the extent Mother and Paternal
11
In FOF 183, the Family Court found:
[w]hile the testimony of Dr. WATTANAVITUKUL was credible in
part, the opinions that she offered were not credible to the
court based on all the evidence in the case and the Court
did not find her opinions regarding a potential placement
with Paternal Aunt or the effect of such a placement on
[Child] to be credible.
(Emphasis added.)
Similarly, in FOF 225, the Family Court found,
[b]ased upon the evidence in the case and the conflicts
between the testimony of Dr. WATTANAVITUKUL and Dr. CHOY
regarding the preparation of the December 30, 2020, report,
the Court did not find Dr. CHOY's opinions regarding
placement of [Child] with Paternal Aunt or the effect of
such a placement on [Child] to be credible. The Court did
not find his opinions regarding "ethnic identity" to be
credible.
(Emphasis added.)
12
After the appeals to this court, Michelle Moorhead no longer serves
as GAL because she no longer works with the Legal Aid Society, and a new GAL
was substituted for Child.
10
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Aunt's arguments challenge the Family Court's FOFs regarding
credibility and the weight of the evidence, these issues are
within the province of the Family Court and we will not review
them.13
With regard to Paternal Aunt's argument that the Family
Court failed to consider ethnicity, culture and religion as
factors and only considered "kinship," the Family Court
considered "all the evidence presented in the case as well as the
information contained in the files and pleadings of the case."
The Family Court's FOFs also refer to Paternal Aunt's testimony
which the Family Court found credible, including that Paternal
Aunt believes it is important for Child to learn to speak Spanish
because Paternal Aunt believes that other children will make fun
of Child for being unable to speak Spanish. Paternal Aunt also
testified that she believes Child should be raised as a Catholic
because that is Child's religion of origin. Therefore, the
Family Court considered Child's ethnicity, culture and religion
13
Mother and Paternal Aunt's primary argument is that the expert
opinions of Dr. Choy and Dr. Wattanavitukul in support of adoption by Paternal
Aunt clearly outweighed any evidence in favor of adoption by RCG. However,
the Family Court expressly did not find Dr. Choy and Dr. Wattanavitukul's
testimonies regarding potential placement with Paternal Aunt, or Dr. Choy's
opinions on "ethnic identity," to be credible. The Family Court found, inter
alia, that: Dr. Choy attended some of Child's sessions with Dr. Wattanavitukul
in person and sometimes only viewed videotaped sessions; Dr. Choy never
visited RCG's home or interviewed RCG's Partner, never met RCG's children, had
not made an evaluation of RCG's home, and never spoke with any of Child's
teachers; and Paternal Aunt participated in some of Child's sessions with Dr.
Wattanavitukul, but RCG and RCG's Partner were not invited to Child's sessions
with Dr. Wattanavitukul because they were not family. The Family Court found
it is inappropriate for a child's therapist to make a placement recommendation
when they have not investigated both potential placements. The Family Court
also noted the conflicting testimonies by Dr. Choy and Dr. Wattanavitukul
regarding who prepared the December 30, 2020 report as a factor in determining
Dr. Choy's credibility. Dr. Wattanavitukul testified that she wrote the
December 30, 2020 report and the changes Dr. Choy made were just corrections
of her grammar and word choice. In contrast, Dr. Choy testified that he wrote
the December 30, 2020 report and Dr. Wattanavitukul either misunderstood or
lied about writing the report.
The Family Court found that Child's GAL, Moorhead, was credible.
Moorhead testified that she considered placement with Paternal Aunt but
recommended it would be in Child's best interest to stay in her current
placement and be adopted by RCG. Moorhead testified that she had observed
Child and Parental Aunt interact in-person on several occasions, including the
first supervised visit around July 2019, and in Parent Child Interactive
Therapy sessions.
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in determining permanent placement and the best interest of
Child.
Further, in arguing that kinship should be given
substantial weight, Paternal Aunt asks this court to overrule the
Hawai#i Supreme Court's holding in In re AS, that there is no
statutory preference for relatives in permanent placement cases
under HRS Chapter 587A.14 In re AS, 132 Hawai#i 368, 387, 322
P.3d 263, 282 (2014) (stating "[t]here being no state statutory
relative preference in permanent placement cases, we disapprove
of DHS's Policy Directives PA Nos. 2005–5, –7, and –8, which
directed the CWSB to give preference to relatives in determining
a foster child's permanent placement, to the extent that those
policies imply that DHS may do so without regard to the child's
best interests, which are always paramount." (emphasis omitted)).
We are bound by the Hawai#i Supreme Court's ruling in In re AS
and cannot overrule it.
C. The Family Court Did Not Abuse Its Discretion
In Continuing the Contested Placement Trial
Finally, Paternal Aunt contends the Family Court abused
its discretion by granting RCG a continuance of the contested
placement trial on January 5, 2021, which was scheduled to begin
that day. We disagree.
14
Paternal Aunt further argues that children have a fundamental
liberty interest to a familial preference in placement and the right for trial
courts to consider the child's ethnic, cultural, and religious heritage in
permanent placement decisions and have such considerations given substantial
weight. GAL contends, inter alia, that Paternal Aunt failed to raise
constitutional issues in the Family Court. Thus, Paternal Aunt has waived her
arguments on appeal. Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort
Co., 100 Hawai#i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not raised in
the trial court are ordinarily deemed waived on appeal.").
To the extent Paternal Aunt argues ethnicity, culture and kinship should
be given more weight in determining permanent placement, the Hawai#i Supreme
Court has repeatedly affirmed that "the best interests of the child standard
[is] paramount when considering the issue of custody. In so doing, the family
court is granted broad discretion to weigh the various factors involved, with
no single factor being given presumptive paramount weight, in determining
whether the standard has been met." Fisher, 111 Hawai#i at 50, 137 P.3d at
364.
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On December 30, 2020, Dr. Choy submitted his
Psychological Treatment Report six days before the trial was
scheduled to begin on January 5, 2021. The report stated that,
since the last progress report dated June 5, 2020, "[Child] and
her biological family have a very strong cultural connection"
which "has become part of [Child]'s identity and this factor
needs to be a primary consideration in making decisions about her
permanent placement."
On January 5, 2021, RCG requested a continuance to
obtain further discovery, and consult with and perhaps retain an
expert because Dr. Choy's report "represent[ed] expert opinions
that are substantially new and different from anything that we've
seen in the case." Over the objections of DHS, Mother, Paternal
Aunt, and GAL, the Family Court granted the continuance. The
Family Court found good cause for the delay in balancing the
period of delay that would be caused by the granting of a
continuance and the reason for the request. Moreover, the Family
Court noted that although trial was set to start on January 5,
2021, trial was not scheduled to conclude until March, and thus
the continuance would not delay the conclusion of the trial by a
significant amount.15 The record shows that the placement trial
was initially anticipated to start in early January 2021, take
three days, and end on March 3, 2021. The actual trial started
at the end of May 2021, took seven days, and ended on July 20,
2021.
Paternal Aunt fails to provide an argument that the
Family Court's grant of the continuance "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 re Adoption of HA, 143 Hawai#i at 74, 422 P.3d at
652.
15
The initial trial dates were January 5, January 6, and March 3,
2021.
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Given the record, the Family Court did not abuse its
discretion in granting RCG's request for a continuance of the
trial.
III. Conclusion
For the reasons discussed above, we affirm the
following orders entered by the Family Court of the First
Circuit:
(1) the Orders Concerning Child Protective Act entered
on September 2, 2021;
(2) the Order Denying Petition for Appointment of
Guardian of a Minor in FC-G No.18-1-6221 entered on September 10,
2021;
(3) the Order Denying Petition for Appointment of
Guardian of a Minor in FC-G No.20-1-6243 entered on September 10,
2021;
(4) the Order Denying Petition for Adoption in FC-A
No.20-1-6175 entered on September 10, 2021; and
(5) the Findings and Order Setting Further Hearing in
FC-A No.21-1-6112 entered on September 10, 2021.
DATED: Honolulu, Hawai#i, May 26, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Rebecca S. Lester,
for Appellant/Cross-Appellee /s/ Keith K. Hiraoka
Associate Judge
Kai Lawrence,
for Intervenor/Appellee-Cross- /s/ Sonja M.P. McCullen
Appellant Associate Judge
Emily M. Hills,
Legal Aid Society of Hawai#i
for Appellee-Guardian Ad Litem
Francis T. O'Brien,
for Intervenor-Appellee
14