NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-MAR-2025 08:16 AM Dkt. 85 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
IN THE INTEREST OF G.B., K.M.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 22-00063)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Mother-Appellant appeals from the Family Court of the
First Circuit's August 8, 2024 order granting Petitioner-
Appellee Department of Human Services' (DHS) motion to establish
a permanent plan (Permanent Plan Order). 1
1 The Honorable Lesley N. Maloian presided.
This case requires a fictitious title following Hawai‘i Revised Statutes §§ 571-54 (2018) and 571-11 (2018).
The family court's Permanent Plan Order was entitled "Orders Regarding [X] Periodic Review [X] Permanency Hearing [X] Intervenor's Motion to Change [K.M.]'s Foster Placement Filed on January 17, 2024, [X] Intervenor's Motion to Be Granted Intervenor Status Regarding [K.M.]'s Foster Placement Filed on May 6, 2024, [X] DHS's Motion for Immediate Review Filed on May 7, 2024, [X] DHS's Motion to Establish a Permanent Plan Filed on May 14, 2024." (Formatting altered.) NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In the Permanent Plan Order, the family court:
continued foster custody of Mother's child, K.M.; ordered a
permanent plan (Permanent Plan) for K.M. with the concurrent
goals of reunification with Mother and Father-Appellee
(collectively, Parents) and guardianship to an appropriate
caregiver; and directed DHS to file a petition for guardianship
of K.M. in a separate proceeding.
On appeal, DHS and Guardian Ad Litem-Appellee Jamie
DeMello (GAL) (1) challenge this court's jurisdiction, while
Mother contends (2) various findings were clearly erroneous,
(3) DHS wrongly removed K.M. from her custody, (4) the family
court abused its discretion in determining it was in K.M.'s best
interest that the resource caregivers be his legal guardians,
and (5) the Permanent Plan failed to provide a reasonable period
to obtain legal guardianship.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and affirm.
(1) As an initial matter, DHS and the GAL contend
this court lacks jurisdiction to review the July 18, 2023 Order
Denying Custody because the Order Denying Custody was
immediately appealable when entered, Mother failed to timely
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
appeal from it and, thus, any challenge to the order was
untimely.
In her notice of appeal and points of error, Mother
identifies the Permanent Plan Order as the decision challenged.
However, in her statement of relief sought, Mother also
indicates she seeks reversal of the Order Denying Custody.
As a practical matter, the Permanent Plan Order
superseded the Order Denying Custody on the issue of custody.
See generally Herrmann v. Herrmann, 138 Hawai‘i 144, 153 n.9, 378
P.3d 860, 869 n.9 (2016). And we have jurisdiction over this
appeal because Mother timely appealed from the Permanent Plan
Order.
(2) Mother first challenges eighteen findings of fact
(FOF), of which four - FOF 84 at 42, FOF 85(u) at 50-51, FOF 16
at 53, and FOF 104 at 65 are clearly erroneous. 2
(a) FOF 84 at 42 referred to the GAL as "Lisa
Demello[.]" The GAL's name, however, was Jamie DeMello. Mother
acknowledges Jamie DeMello was the GAL and does not dispute that
2 We note the family court's FOF numbering restarts on page 52. Thus, page numbers are included after each FOF number for ease of reference.
The remaining FOF challenged are 82 at 38, 85(m) at 49, 85(w) at 50-51, 82 at 63, 83 at 63, 86 at 63, 87 at 63, 102 at 65, 103 at 65, 106 at 66, 120 at 68, 123 at 68, 127 at 68, 128 at 69. Though Mother's opening brief identifies FOF 82 at 38, the language Mother quotes is from FOF 81 at 38. Mother also challenges COL 23, which is actually a finding of fact. These challenged FOF and COL 23 are not clearly erroneous.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Jamie DeMello testified at trial. Other FOF and COL correctly
identify the GAL as Jamie DeMello.
Thus, it appears the reference to "Lisa" DeMello was a
typographical error, and does not require this court to vacate
the Permanent Plan Order.
(b) FOF 85(u) at 50-51 noted that guardianship to
Maternal Aunt would take an additional six months due to
monitoring:
If guardianship is granted to the maternal aunt, it will take an additional six (6) months because [sic] would have to monitor placement to ensure safety and adjustment. In order to proceed with the guardianship, [sic] continues to need a report from the [Interstate Compact on the Placement of Children (ICPC)] in California that the placement is safe[.]
(Emphasis added.)
But DHS Social Worker Sina Sison later appeared
to provide contradictory cross examination testimony
explaining there was no waiting period if guardianship were
awarded to Maternal Aunt:
[Mother's Counsel:] Is it your opinion that . . . the [M]aternal [A]unt can be awarded guardianship today?
[Sison:] No. Because there's the ICPC process that has to happen.
[Mother's Counsel:] Well, why would the ICPC process be involved if the Court grants guardianship of [K.M.] to [Maternal Aunt] and she becomes the legal guardian?
[Sison:] Well, in that case, yes.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
[Mother's Counsel:] Then there would be no waiting period?
[Sison:] There would be no waiting period.
The family court did not resolve this contradictory
testimony. Nonetheless, following the Permanent Plan, the
Permanent Plan Order contemplates awarding "legal guardianship
[to] appropriate caregivers[,]" including Maternal Aunt and
K.M.'s resource caregivers. Thus, any error was harmless.
(c) FOF 16 at 53 noted Mother did not retain teaching
from services, but FOF 17 at 53 through 49 at 58 clarify that
Mother did not participate in services. Thus, FOF 16 at 53 was
clearly erroneous. But the error was harmless because Mother
does not dispute that she was offered services or that she was
unable to demonstrate the skills necessary to address the safety
issues that caused K.M. to be placed in foster care.
(d) FOF 104 at 65 provided that the "children enjoyed
visitation with the maternal family during some holidays and
breaks, but did not wish to be permanently placed with the
maternal family in California." Mother contends Sison testified
K.M. indicated he wanted to live with Maternal Aunt.
The portion of Sison's testimony Mother refers to in
her opening brief shows K.M. changed his mind more than once
about custody preference:
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
[DHS Counsel:] And could you please just kind of express the – from one end to the next, what does [K.M.] express to the Department?
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-MAR-2025 08:16 AM Dkt. 85 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
IN THE INTEREST OF G.B., K.M.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 22-00063)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Mother-Appellant appeals from the Family Court of the
First Circuit's August 8, 2024 order granting Petitioner-
Appellee Department of Human Services' (DHS) motion to establish
a permanent plan (Permanent Plan Order). 1
1 The Honorable Lesley N. Maloian presided.
This case requires a fictitious title following Hawai‘i Revised Statutes §§ 571-54 (2018) and 571-11 (2018).
The family court's Permanent Plan Order was entitled "Orders Regarding [X] Periodic Review [X] Permanency Hearing [X] Intervenor's Motion to Change [K.M.]'s Foster Placement Filed on January 17, 2024, [X] Intervenor's Motion to Be Granted Intervenor Status Regarding [K.M.]'s Foster Placement Filed on May 6, 2024, [X] DHS's Motion for Immediate Review Filed on May 7, 2024, [X] DHS's Motion to Establish a Permanent Plan Filed on May 14, 2024." (Formatting altered.) NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In the Permanent Plan Order, the family court:
continued foster custody of Mother's child, K.M.; ordered a
permanent plan (Permanent Plan) for K.M. with the concurrent
goals of reunification with Mother and Father-Appellee
(collectively, Parents) and guardianship to an appropriate
caregiver; and directed DHS to file a petition for guardianship
of K.M. in a separate proceeding.
On appeal, DHS and Guardian Ad Litem-Appellee Jamie
DeMello (GAL) (1) challenge this court's jurisdiction, while
Mother contends (2) various findings were clearly erroneous,
(3) DHS wrongly removed K.M. from her custody, (4) the family
court abused its discretion in determining it was in K.M.'s best
interest that the resource caregivers be his legal guardians,
and (5) the Permanent Plan failed to provide a reasonable period
to obtain legal guardianship.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and affirm.
(1) As an initial matter, DHS and the GAL contend
this court lacks jurisdiction to review the July 18, 2023 Order
Denying Custody because the Order Denying Custody was
immediately appealable when entered, Mother failed to timely
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
appeal from it and, thus, any challenge to the order was
untimely.
In her notice of appeal and points of error, Mother
identifies the Permanent Plan Order as the decision challenged.
However, in her statement of relief sought, Mother also
indicates she seeks reversal of the Order Denying Custody.
As a practical matter, the Permanent Plan Order
superseded the Order Denying Custody on the issue of custody.
See generally Herrmann v. Herrmann, 138 Hawai‘i 144, 153 n.9, 378
P.3d 860, 869 n.9 (2016). And we have jurisdiction over this
appeal because Mother timely appealed from the Permanent Plan
Order.
(2) Mother first challenges eighteen findings of fact
(FOF), of which four - FOF 84 at 42, FOF 85(u) at 50-51, FOF 16
at 53, and FOF 104 at 65 are clearly erroneous. 2
(a) FOF 84 at 42 referred to the GAL as "Lisa
Demello[.]" The GAL's name, however, was Jamie DeMello. Mother
acknowledges Jamie DeMello was the GAL and does not dispute that
2 We note the family court's FOF numbering restarts on page 52. Thus, page numbers are included after each FOF number for ease of reference.
The remaining FOF challenged are 82 at 38, 85(m) at 49, 85(w) at 50-51, 82 at 63, 83 at 63, 86 at 63, 87 at 63, 102 at 65, 103 at 65, 106 at 66, 120 at 68, 123 at 68, 127 at 68, 128 at 69. Though Mother's opening brief identifies FOF 82 at 38, the language Mother quotes is from FOF 81 at 38. Mother also challenges COL 23, which is actually a finding of fact. These challenged FOF and COL 23 are not clearly erroneous.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Jamie DeMello testified at trial. Other FOF and COL correctly
identify the GAL as Jamie DeMello.
Thus, it appears the reference to "Lisa" DeMello was a
typographical error, and does not require this court to vacate
the Permanent Plan Order.
(b) FOF 85(u) at 50-51 noted that guardianship to
Maternal Aunt would take an additional six months due to
monitoring:
If guardianship is granted to the maternal aunt, it will take an additional six (6) months because [sic] would have to monitor placement to ensure safety and adjustment. In order to proceed with the guardianship, [sic] continues to need a report from the [Interstate Compact on the Placement of Children (ICPC)] in California that the placement is safe[.]
(Emphasis added.)
But DHS Social Worker Sina Sison later appeared
to provide contradictory cross examination testimony
explaining there was no waiting period if guardianship were
awarded to Maternal Aunt:
[Mother's Counsel:] Is it your opinion that . . . the [M]aternal [A]unt can be awarded guardianship today?
[Sison:] No. Because there's the ICPC process that has to happen.
[Mother's Counsel:] Well, why would the ICPC process be involved if the Court grants guardianship of [K.M.] to [Maternal Aunt] and she becomes the legal guardian?
[Sison:] Well, in that case, yes.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
[Mother's Counsel:] Then there would be no waiting period?
[Sison:] There would be no waiting period.
The family court did not resolve this contradictory
testimony. Nonetheless, following the Permanent Plan, the
Permanent Plan Order contemplates awarding "legal guardianship
[to] appropriate caregivers[,]" including Maternal Aunt and
K.M.'s resource caregivers. Thus, any error was harmless.
(c) FOF 16 at 53 noted Mother did not retain teaching
from services, but FOF 17 at 53 through 49 at 58 clarify that
Mother did not participate in services. Thus, FOF 16 at 53 was
clearly erroneous. But the error was harmless because Mother
does not dispute that she was offered services or that she was
unable to demonstrate the skills necessary to address the safety
issues that caused K.M. to be placed in foster care.
(d) FOF 104 at 65 provided that the "children enjoyed
visitation with the maternal family during some holidays and
breaks, but did not wish to be permanently placed with the
maternal family in California." Mother contends Sison testified
K.M. indicated he wanted to live with Maternal Aunt.
The portion of Sison's testimony Mother refers to in
her opening brief shows K.M. changed his mind more than once
about custody preference:
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
[DHS Counsel:] And could you please just kind of express the – from one end to the next, what does [K.M.] express to the Department?
[Sison:] So at the ending of last year when I started asking him, he wants to remain with the current resource caregivers. And at the beginning of the year, after he got back from the trip, he said that he wanted to go with [M]aternal [A]unt. And then later on, maybe March, April, he wanted to remain with the resource caregiver. When I talked to him on Monday, he shared that he wants to go with [M]aternal [A]unt.
Thus, the finding that K.M. "did not wish to be
permanently placed with the maternal family in California" was
clearly erroneous because K.M. told Sison two days before
Sison's trial testimony that he "wants to go with" Maternal
Aunt. Notwithstanding this, Hawai‘i Revised Statutes (HRS)
chapter 587A does not require a family court to consider a
child's preferences when ordering a permanent plan pursuant to a
permanency hearing. The only time a family court must obtain a
child's consent to a permanent plan is at a termination of
parental rights hearing, and only if the child is at least
fourteen years old. HRS § 587A-33(a)(4) (2018). Thus, any
error was harmless.
(3) Mother contends DHS "wrongfully removed [K.M.]
from [her] custody on March 13, 2023 because [Father] took
[K.M.] from [her]."
On April 29, 2022, the family court ordered that, if
Mother was subsequently awarded custody under family
supervision, she must keep K.M. and his sister away from Father.
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On June 30, 2022, K.M. was returned to Mother's custody under
family supervision.
On March 13, 2023, K.M. was found wandering Jefferson
Elementary School's campus. K.M. reported he "went to the
store" with his Parents that morning, Father and K.M. "lost
mother[,]" Father and K.M. waited for Mother for an hour, and
then Father dropped K.M. off at school, but there was no school
because it was spring break. The family court revoked Mother's
custody award.
Because Mother violated the court order to keep K.M.
away from Father, the family court did not abuse its discretion
in revoking Mother's custody award. In re AA, 150 Hawai‘i 270,
283, 500 P.3d 455, 468 (2021) ("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." (citations omitted)).
(4) Mother contends the family court "abused its
discretion in finding the resource caregivers as the proposed
legal guardians is in [K.M.]'s best interest when [DHS]
recommended [Maternal Aunt] . . . ."
Here, DHS generally recommended legal guardianship and
identified Maternal Aunt or resource caregivers as appropriate
legal guardianship options.
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
As to Maternal Aunt, the family court found her
testimony "was not wholly credible." The family court
explained, "[s]pecifically, but not limited to alleged
statements made by the subject children regarding their feelings
about their current resource caregivers, the subject children's
wishes after [older sister] turns eighteen years of age, and
discussions had with the subject children regarding court
matters."
The family court then decided it was in K.M.'s best
interest to remain with the resource caregivers as he "has
bonded to his caregivers, the caregivers are bonded to [him],
[K.M.] continues to thrive in the care of his current
caregivers, [K.M.] is placed with his sibling and [he] is able
to maintain his family connections to his [P]arents."
Based on the family court's credibility and best
interest determinations, we cannot say there was an abuse of
discretion. In re Doe, 95 Hawaiʻi 183, 190, 20 P.3d 616, 623
(2001) ("It is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the trier of
fact." (cleaned up)).
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(5) Finally, Mother contends the "permanent plan was
not amended to reflect a reasonable period to obtain legal
guardianship."
HRS § 587A-32(a)(2) (2018) requires the permanent plan
"[e]stablish a reasonable period of time by which the adoption
or legal guardianship shall be finalized[.]"
In this case, the Permanent Plan was dated May 8,
2024, identified as an initial plan, and filed with the motion
to establish a permanent plan on May 13, 2024. The Permanent
Plan set a target date of being "[r]eferred for legal
guardianship by May 2024." (Emphasis omitted.) And DHS
recommended the family court order a permanent plan "with the
goal of legal guardianship with appropriate caregivers." But
the Permanent Plan did not establish a reasonable period within
which legal guardianship would be finalized.
The family court granted the motion to establish a
permanent plan and ordered the projected date for reunification
or legal guardianship be "within [the] next 6 months[,]" and set
a return on the legal guardianship petitions for September 24,
2024. (Emphasis omitted.) Thus, although the Permanent Plan
did not establish a reasonable period when legal guardianship
would be finalized, the Permanent Plan Order did. And the
9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
May 8, 2024 Permanent Plan was made part of the family court's
Based on the foregoing, we affirm the family court's
August 8, 2024 Permanent Plan Order.
DATED: Honolulu, Hawai‘i, March 31, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Herbert Y. Hamada, for Mother-Appellant. /s/ Karen T. Nakasone Associate Judge Jonathan M. Fujiyama, Julio C. Herrera, /s/ Sonja M.P. McCullen Deputy Attorneys General, Associate Judge for Petitioner-Appellee, Department of Human Services.
Jamie L. DeMello, Guardian Ad Litem.