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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 13-DEC-2019 08:10 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
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IN THE INTEREST OF R CHILDREN
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; FC-S NO. 14-00025)
DECEMBER 13, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
This case contemplates the interaction between two
similar statutory provisions that provide for the termination of
parental rights. On December 1, 2016, the Family Court of the
First Circuit (family court) terminated Petitioner/Appellant
Father’s parental rights to his child (KK) pursuant to Hawai#i
Revised Statutes (HRS) § 587A-33 (Supp. 2015), a provision of the
Child Protective Act (CPA) (the CPA Provision). Father appealed.
The Intermediate Court of Appeals (ICA) observed that the CPA *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Provision requires the family court to find that the “proposed
permanent plan is in the best interests of the child” before
terminating a parent’s parental rights. HRS § 587A-33(a)(3).
The ICA held that the family court’s termination of Father’s
parental rights was not permitted by the plain language of the
CPA Provision because the family court found that
Respondent/Appellee Department of Human Services’ (DHS) permanent
plan for KK was not in KK’s best interests. The ICA nevertheless
affirmed the family court’s termination of Father’s parental
rights under a provision of the family court statutes, HRS § 571-
61(b)(1)(E) (Supp. 2016) (the Family Court Provision).
On application for writ of certiorari, Father asks
whether the ICA erred in substituting the Family Court Provision
for the CPA Provision as the basis for terminating his parental
rights.
We hold that the ICA erred in substituting the Family
Court Provision for the CPA Provision as the basis for affirming
the family court’s termination of Father’s parental rights when
the CPA Provision contains a requirement not present in the
Family Court Provision.
Accordingly, we vacate the ICA’s judgment on appeal and
remand to the family court for further proceedings.
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I. BACKGROUND
A. Family Court Proceedings1
Mother has six children. Father is the father of the
youngest child, KK, who was born on
December 20, 2012.2 KK was three years old at the time DHS moved
to terminate Father’s parental rights. At the time of the
termination of parental rights hearing, Mother was no longer in a
relationship with Father. Mother obtained a Temporary
Restraining Order (TRO) against Father on February 10, 2014.
On February 18, 2014, DHS filed a Petition for Family
Supervision over five of the children,3 including KK, after
learning that, in 2013, Father had kicked one of Mother’s older
children in the chest and punched Mother in the head when she
tried to pick up the child. In DHS’s petition, DHS stated that
“[t]he behaviors of [Father] are violent, threatening violence,
and/or out of control.” DHS also remarked that “[Father] is
believed to also have substance abuse issues (alcohol, marijuana
and Ice)[.]” DHS stated that Mother could not adequately
supervise or protect the children from harm, noting the extensive
history of domestic violence in Mother and Father’s relationship
1 The Honorable Steven M. Nakashima presided. 2 Mother’s five other children share a different father. 3 One of the children was already in the care of his maternal grandparents at this time.
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and between Mother and the father of her older children.
However, DHS opined that Mother “can provide a safe family home
for the children with the assistance of a service plan.”
Because the family court found that “there [was] an
adequate basis to sustain the petition[,]” the family court
ordered Mother and Father to follow a service plan created by
DHS. The February 2014 service plan directed Mother to undergo a
psychological evaluation, domestic violence/anger management
education, comprehensive counseling and support services, and
enhanced healthy start services.4 The February 2014 service plan
directed Father to undergo substance abuse treatment, random
urinalysis, domestic violence/anger management education,
psychological evaluation, and comprehensive counseling and
support services. The February 2014 service plan also directed
both Mother and Father to cooperate with a DHS social worker.
Over the course of the following seventeen months, DHS
created four subsequent service plans. Each service plan
indicated that, if Mother and Father were able to “successfully
complete and utilize the services that [were] outlined in [the]
service plan” and demonstrate that KK was “no longer at risk of
4 Hawaii’s Healthy Start program is a home visiting service intended to “foster family functioning, promote child health/development, and enhance positive parenting skills to address the risk of child maltreatment through linkages with community resources.” Healthy Start Program, State of Hawai #i, Department of Health (Oct. 20, 2019, 2:17 PM), https://health.hawaii.gov/mchb/home/healthy-start-program/).
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abuse or neglect in the family home[,]” DHS could recommend that
the case be closed. However, each subsequent service plan warned
Mother and Father again that their “parental and custodial duties
and rights . . . may be terminated . . . unless [they were]
willing and able to provide [KK] with a safe family home within
the reasonable period of time specified in [the] family service
plan.”
On July 23, 2015, DHS filed a motion in the family
court to terminate Mother and Father’s parental rights to KK and
award permanent custody of KK to DHS (Motion to Terminate). DHS
based its motion on the ongoing domestic violence in Mother and
Father’s relationship, Father’s continued substance abuse, and
Mother and Father’s failure to “change to be protective of their
children.” DHS concluded that Mother and Father were unable, now
or in the foreseeable future, to provide a safe home without the
assistance of a court-ordered service plan. In the motion, DHS
proposed a permanent plan which would place KK with adoptive
parents after DHS gained permanent custody of KK.5
B. Termination Hearings
Hearings on the Motion to Terminate took place on
March 8, 2016 and April 4, 2016.
5 KK had been living with “resource caregivers” who were his h ânai relatives. KK’s resource caregivers indicated to DHS that they wished to adopt KK.
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Mother testified on April 4, 2016. Mother testified
that she loved KK and that KK had bonded with her and called her
“Mommy” during their supervised visits. Mother testified that
she had a good record of attending her supervised visits with KK.
Mother also testified that if DHS instructed her not to allow
contact between KK and Father, she would comply. Mother stated
that her paycheck from her job at a restaurant would support rent
and utilities in a low-income housing apartment.
Father also testified on April 4, 2016. Father
testified that he had bi-weekly supervised visits with KK and
that he consistently attended those visits. Father stated that
the visits were pleasant, but that KK was “spoiled.” Father
testified that these proceedings began “[b]ecause of [his] anger
issues, drug use, and abuse[,]” but stated that “[i]t’s all good
now” because he was working more and was subjected to random drug
tests at work. Father admitted, however, that there had been a
period during which he consistently missed drug tests. Father
also stated that he had lost parental rights to another child
with a different mother. Father testified that 60 percent of his
paycheck went to child support for four children. Father stated
that he wanted to have more visits with KK, but that he
understood one of the reasons he was unable to have more visits
was his inconsistency with drug testing.
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Annette Shanks (Shanks), a DHS social worker assigned
to KK’s case in 2014, testified on behalf of DHS on March 8,
2016. Shanks testified that DHS believed neither Mother nor
Father were currently willing or able to provide a safe family
home for KK, even with the assistance of a service plan, and that
it was not reasonably foreseeable that they would be able to do
so within a reasonable period of time. DHS’s permanent plan for
KK envisioned his adoption by his resource caregivers. Shanks
testified that this plan was in KK’s best interests because he
was very close with his resource caregivers, who wanted to adopt
him. The family court found Shanks’s testimony credible.
The family court issued its “Order Terminating Parental
Rights of [Father] and Order Regarding Insufficient Basis
Currently to Terminate Parental Rights of [Mother]” on May 23,
2016 and issued its Findings of Fact, Conclusions of Law, and
Order on December 1, 2016.6 Pursuant to HRS § 587A-
6 ACCORDINGLY, IT IS HEEBY [sic] ORDERED that: 1. DHS’ Motion to Terminate Parental Rights Regarding the Child filed on July 23, 2015 is granted in part as it applies to [Father] and denied in part as it applies to Mother. 2. The prior award of foster custody and the existing service plan as to [Father] are revoked as the parental rights of [Father] are hereby terminated. 3. Further, pursuant to HRS § 587A-33(b)(5), [Father] is excluded from participating in any subsequent proceedings and he shall not be notified of future hearings and he shall not appear at future hearings unless he receives legal notice that specifically requires his appearance. 4. However, pursuant to HRS § 587A-33(c) unless otherwise ordered by the Court, or if the Child is ultimately adopted, (continued...)
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33,7 the CPA Provision, the family court found that “the evidence
presented at trial establishes that there is clear and convincing
evidence that [Father’s] parental rights should be terminated,
however, as to [Mother], there is insufficient evidence to
terminate her parental rights, at this time.” The family court
also found that DHS’s proposed permanent plan of placing KK in
adoption was not in KK’s best interests. The family court
rejected DHS’s permanent plan to place KK in adoption in order to
“afford Mother an opportunity for reunification with [KK] if
Mother is able to comply with the requirements set forth [by
DHS].”
C. ICA Proceedings
Father filed a notice of appeal from the Order
Terminating Parental Rights on May 31, 2016. In his opening
brief, Father argued, inter alia, that the circuit court’s
termination of Father’s parental rights after finding that DHS’s
permanent plan was not in KK’s best interests “is contrary to the
6 (...continued) [Father] shall retain the continuing responsibility to support the Child, including repaying the cost of any and all care, treatment, or any other service provided for the Child’s benefit. 5. The prior award of foster custody as it applies to Mother shall continue and DHS is not awarded permanent custody of the Child. 6. The DHS shall prepare a plan to achieve permanency for the Child within 3 months of May 5, 2016. HRS § 587A-33(h)(1). 7 See infra Section III. A.
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statutory provisions of Section 587A-33(b) [the CPA Provision.]”
The ICA agreed. The ICA held that because the family
court did not find the permanent plan of adoption to be in KK’s
best interests, the requirements of the CPA Provision were not
met and the CPA Provision therefore provided no basis for
terminating Father’s parental rights. In the Interest of R
Children, No. CAAP-XX-XXXXXXX, 2018 WL 4346884 (App. Sept. 12,
2018) (mem.). Nevertheless, the ICA held that the family court
did not err in terminating Father’s parental rights, because HRS
§ 571-61(b)(1)(E),8 the Family Court Provision, provides for the
termination of parental rights without regard to a permanent
plan, and “[t]he legislative history is clear that HRS chapter
587 was not intended to displace the provisions of HRS chapter
571, but rather to incorporate its provisions into a unified
proceeding.” (Citing S. Stand. Comm. Rep. No. 537-86, in 1986
Senate Journal, at 1023.) The ICA therefore concluded that
8 The Family Court Provision, HRS § 571-61(b)(1)(E), provides,
The family courts may terminate the parental rights in respect to any child as to any legal parent:
. . . .
(E) Whose child has been removed from the parent’s physical custody pursuant to legally authorized judicial action under section 571-11(9), and who is found to be unable to provide now and in the foreseeable future the care necessary for the well-being of the child[.]
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“[h]aving met the standard necessary for termination under [the
CPA Provision] . . . termination of Father’s parental right is
permissible under [the Family Court Provision].” The ICA
affirmed the family court’s judgment terminating Father’s
parental rights to KK.
Father filed an application for writ of certiorari.
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)).
The family court’s conclusions of law, on appeal, are
reviewed de novo under the right/wrong standard. In re Jane Doe,
101 Hawai#i 220, 227, 65 P.3d 167, 174 (2003). Conclusions of
law, “consequently, are not binding upon an appellate court and
are freely reviewable for their correctness.” Id. (internal
quotation marks, citation, and brackets omitted).
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B. Statutory Interpretation
“Statutory interpretation is a question of law
reviewable de novo.” State v. Wheeler, 121 Hawai#i 383, 390, 219
P.3d 1170, 1177 (2009) (internal quotation marks and citations
omitted). Our construction of statutes is guided by the
following rules: 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.
First Ins. Co. of Haw. v. A&B Props., 126 Hawai#i 406, 414, 271
P.3d 1165, 1173 (2012) (internal citations omitted).
III. DISCUSSION
In his application for writ of certiorari, Father
argues that the ICA gravely erred in substituting the Family
Court Provision as the basis for affirming the family court’s
decision.
A. The CPA Provision provides for the termination of parental rights only when the family court finds that the proposed permanent plan is in the best interests of the child.
As a threshold matter, we agree with the ICA that the
CPA Provision only provides for the termination of a parent’s
parental rights if the family court finds that the permanent plan
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is in the child’s best interests. Because the family court here
found that DHS’s permanent plan was not in KK’s best interests,
the family court erred in terminating Father’s parental rights to
KK under the CPA Provision. The CPA Provision, HRS § 587A-33,
provides,
Termination of parental rights hearing. (a) At a termination of parental rights hearing, the court shall determine whether there exists clear and convincing evidence that: (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. (b) If the court determines that the criteria 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:
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(1) That the child’s parent’s parental rights be terminated; (2) Termination of the existing service plan and revocation of the prior award of foster custody; (3) That permanent custody of the child be awarded to an appropriate authorized agency; (4) An appropriate permanent plan; and (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.
(h) If the court determines that the criteria set forth in subsection (a) are not established by clear and convincing evidence, the court shall order: (1) The preparation of a plan to achieve permanency for the child; (2) The entry of any orders that the court deems to be in the best interests of the child; (3) A periodic review hearing to be held within six months after the date of the last permanency hearing; and (4) A permanency hearing to be held within twelve months of the date of the last permanency hearing.
HRS § 587A-33 (Supp. 2015) (emphasis added). In other words, the
CPA Provision provides that the family court shall terminate a
parent’s parental rights if it finds that: (1) the parent is not
able to provide a safe family home for the child now or within a
reasonable period of time (HRS §§ 587A-33(a)(1)-(2)); (2) the
proposed permanent plan is in the best interests of the child
(HRS § 587A-33(a)(3)); and (3) the child consents to the
permanent plan if the child is at least fourteen years old (HRS §
587A-33(a)(4)). Pursuant to section (h) of the CPA Provision, if
the family court does not find that all of these requirements are
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met, the family court shall take further steps to establish
permanency for the child. HRS § 587A-33(h). However, nothing in
the CPA Provision indicates that the family court can terminate a
parent’s parental rights if fewer than all of the above
requirements are met.
Here, the CPA Provision requirements were not met. The
family court concluded that “DHS has shown by clear and
convincing evidence that [Father] is not presently willing and
able to provide the Child with a safe family home, even with the
assistance of a service plan” and that “it is not reasonably
foreseeable that [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.” However, the
family court did not make equivalent parental unfitness findings
as to Mother, and did not terminate Mother’s parental rights.
DHS’s proposed permanent plan was for DHS to obtain permanent
custody of KK, and for KK’s resource caregivers to thereafter
adopt KK. Therefore, DHS’s proposed permanent plan did not
anticipate Mother’s ability to regain custody of KK.
Accordingly, the family court found that “the Permanent Plan is
not in the Child’s best interests[.]” Citing various subsections
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of the CPA Provision,9 the family court terminated Father’s
parental rights.
The family court’s order terminating Father’s parental
rights without finding that the proposed permanent plan was in
KK’s best interests contravenes the plain language of the CPA
Provision. The family court found by clear and convincing
evidence that the requirements set forth in HRS §§ 587A-33(a)(1)
and (a)(2) were met, but explicitly determined that the
requirement of HRS § 587A-33(a)(3) was not met.10 Because not all
of the requirements set forth in the CPA Provision were met, the
statute did not provide the family court authority to terminate
Father’s parental rights. See HRS § 587A-33(h).
“[W]here the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain and
obvious meaning.” Wheeler, 121 Hawai#i at 390, 219 P.3d at 1177.
The requirement that the family court find the permanent plan to
be in the best interests of the child before terminating a
parent’s parental rights is plain on the face of the CPA
Provision. Accordingly, the family court erred in terminating
9 See supra note 6. 10 The family court made no specific determination as to HRS § 587A- 33(a)(4) because KK was less than fourteen years old.
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Father’s parental rights under the CPA Provision.11
B. The ICA erred in substituting the Family Court Provision as the basis for terminating Father’s parental rights because the CPA Provision contains an additional requirement.
In 1965, the Legislature enacted the statute that is
now the Family Court Provision as part of “A Bill for an Act to
Establish Family Courts” with the purpose of “gather[ing]
together all judicial activities which relate to children and the
family.” H.B. 879, 3rd Leg., Gen. Sess. (Haw. 1965); S. Stand.
Comm. Rep. No. 272, in 1965 Senate Journal, at 917. In 1983, Act
171 enacted the first version of the CPA, which included the
Family Court Provision, and was codified as HRS chapter 587.
1983 Haw. Sess. Laws Act 171, at 320-45. In 2010, Act 135
repealed HRS chapter 587 and divided its contents into the new
CPA, codified as HRS chapter 587A, and the “Family Courts”
chapter, codified as HRS chapter 571. 2010 Haw. Sess. Laws Act
135, § 1 at 282-311.
There is considerable overlap between the new CPA and
the Family Courts chapter, both with respect to the criteria for
instigating the termination of parental rights and the procedure
for terminating a parent’s parental rights. The new CPA was
11 The CPA Provision, HRS § 587A-33, provided the sole basis for the family court’s judgment terminating Father’s parental rights. “[T]he rights to conceive and to raise one’s children are essential, . . . basic civil rights of man protected by the United States Constitution.” In re Doe, 99 Hawai #i 522, 532, 57 P.3d 447, 457 (2002) (internal quotation marks and citations omitted). As such, nothing less than strict compliance with the statute invoked is sufficient to terminate parental rights.
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enacted to “ensure[] that the Child Protective Act is in
conformity with Federal Title IV-E provisions.”12 S.B. 2716,
Conf. Com. Rep. 112-10, at 764. The Legislature’s desire to
conform with federal Social Security Act provisions might explain
why the two similar chapters exist concurrently.
Despite the overlap in the CPA and the Family Courts
chapter, the Family Court Provision and the CPA Provision are not
interchangeable. The Family Court Provision cannot serve as a
substitute for the CPA Provision when the CPA Provision contains
an additional requirement. The ICA therefore erred in affirming
the family court’s order terminating Father’s parental rights
under the Family Court Provision.
The ICA concluded that “[a]n award of permanent custody
under HRS section 587A-33 [the CPA Provision] involves
essentially the same criteria and material elements as
termination of parental rights under HRS section 571-61(b)(1)(E)
[the Family Court Provision].” The ICA also referred to case law
and legislative history demonstrating that the two statutes are
meant to be used together, not one to the exclusion of the other.
The ICA therefore held that “termination of Father’s parental
right[s] is permissible under HRS section 571-61(b)(1)(E) [the
12 Title IV-E of the Social Security Act (42 U.S.C. §§ 671-679(b)) provides federal reimbursement to states for a portion of the maintenance and administrative costs of foster care for children who meet federal eligibility requirements. 42 § U.S.C. 672.
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Family Court Provision].”
The ICA is correct that the CPA and the Family Courts
chapter can be used together, but erred in substituting the
Family Court Provision for the CPA Provision when the two
statutes are not interchangeable. The procedure set forth by the
CPA Provision requires the family court to find that the
permanent plan is in the best interests of the child before
terminating a parent’s parental rights. HRS § 587A-33(a)(3). In
ignoring the procedural requirement of the permanent plan finding
set forth by the CPA Provision, the ICA disregarded an important
requirement of the parental rights termination process.
The Family Court Provision permits termination of
parental rights without regard to a permanent plan. The Family
Court Provision, HRS § 571-61(b)(1)(E) (Supp. 2016), provides (1) The family courts may terminate the parental rights in respect to any child as to any legal parent:
(E) Whose child has been removed from the parent’s physical custody pursuant to legally authorized judicial action under section 571-11(9), and who is found to be unable to provide now and in the foreseeable future the care necessary for the well-being of the child[.]
By contrast, the CPA Provision requires more before the family
court can terminate a parent’s parental rights. As previously
discussed, the CPA Provision requires the family court to find
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that DHS’s proposed permanent plan is in the best interests of
the child. HRS § 587A-33(a)(3). The ICA concluded that the CPA
Provision and the Family Court Provision can be read together to
allow the family court’s termination of Father’s parental rights.
However, the ICA’s analysis substituted the Family Court
Provision for the CPA Provision as the basis for terminating
Father’s parental rights. In doing so, the ICA’s analysis
disregarded HRS § 587A-33(a)(3), the portion of the CPA Provision
that requires the family court to find that the proposed
permanent plan is in the best interests of the child.
With respect to statutory interpretation, this court
has previously stated, [i]n the construction of a statute the general law is that a statute should be so interpreted to give it effect; and we must start with the presumption that our legislature intended to enact an effective law, and it is not to be presumed that legislation is a vain effort, or a nullity.
State v. Harada, 98 Hawai#i 18, 48, 41 P.3d 174, 204 (2002).
Moreover, It is the generally accepted rule of statutory construction that unless a legislative intention to the contrary clearly appears, special or particular provisions control over general provisions, terms or expressions . . . . It is also elementary that specific provisions must be given effect notwithstanding the general provisions are broad enough to include the subject to which the specific provisions relate.
State by Kashiwa v. Coney, 45 Haw. 650, 662, 372 P.2d 348, 354
(1962), overruled on other grounds by City and Cty. of Honolulu
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v. Bonded Inv. Co., Ltd., 54 Haw. 385, 507 P.2d 1084 (1973). Put
differently, this court presumes that the legislature does not
enact statutes with language that has no meaning and has
concluded that specific statutes control over general statutes.
The ICA erred in disregarding the permanent plan
requirement of the CPA Provision because the plan furthers the
legislature’s intent to serve the best interests of the child.
The CPA’s stated purpose is to “make paramount the safety and
health of children who have been harmed or are in life
circumstances that threaten harm.” HRS § 587A-2 (Supp. 2015).
The statute instructs that “[t]his chapter shall be liberally
construed to serve the best interests of the children affected
and the purpose and policies set forth herein.” HRS § 587A-2.
The CPA also explicitly calls for the implementation of
permanent plans. The CPA’s statement of purpose references
permanent plans four times. HRS § 587A-2. Also, the CPA “makes
provisions for the service, treatment, and permanent plans for []
children and their families.” HRS § 587A-2 (emphasis added).
The legislative history of Act 316, which enacted a previous
version of HRS chapter 587, states that the CPA was “to provide
for timely permanent planning by incorporating in the Child
Protective Act certain provisions of the termination of parental
rights statute[.]” H. Stand. Comm. Rep. No. 236-86, in 1986
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House Journal, at 1088 (emphasis added). The CPA’s purpose and
legislative history convey the legislature’s intent that the CPA
provide for permanent plans that are in the best interests of
children. As such, the ICA erred in substituting the Family
Court Provision to circumvent the permanent plan requirement of
the CPA Provision.
Moreover, the permanent plan requirement in the CPA
Provision adds an additional, specific criterion that we cannot
disregard. See Kashiwa, 45 Haw. at 662, 372 P.2d at 354. The
permanent plan requirement in the CPA Provision is specific
because, as discussed previously, it sets forth an additional
criterion not present in the Family Court Provision. This
interpretation does not contravene clear legislative intent to
the contrary. Using the statutes together but allowing the
specific provision to control where the family court does not
find the permanent plan to be in the child’s best interests
comports with the legislature’s intent. Therefore, the specific
permanent plan requirement of the CPA Provision controls. As
such, the ICA erred in disregarding the permanent plan
requirement and concluding that the CPA Provision’s termination
criteria are “essentially the same” as the Family Court
Provision’s criteria, when the CPA Provision clearly contains an
additional criterion.
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Finally, neither of the two cases that the ICA cited in
determining that the Family Court Provision was an adequate
substitute for the CPA Provision support that proposition.
First, the ICA cited its holding in In re Male Child Born on
May 27, 1983, 8 Haw. App. 66, 72, 793 P.2d 669, 672 (1990) that
the termination criteria under the CPA Provision and the Family
Court Provision are “essentially the same.” However, in Male
Child, the ICA was construing the phrase “foreseeable future,”
contained in the Family Court Provision, and did not consider the
CPA’s permanent plan requirement. Id. The ICA noted that, under
a different CPA provision, HRS § 587-73 (Supp. 1989), a
“reasonable period of time . . . shall not exceed three years[.]”
Id. at 69-70, 793 P.2d at 671. The ICA therefore held that,
reading the statutes together, “foreseeable future” means three
years from the filing date of the petition for termination of
parental rights, consistent with the CPA Provision. Id. at 72,
793 P.2d at 672. Male Child does not reference the CPA
Provision’s requirement that the permanent plan be in the best
interests of the child, and in disregarding it, only imports the
temporal provisions of the Family Court Provision and the CPA
Provision. Therefore, Male Child does not support the ICA’s
invocation of the Family Court Provision to affirm the family
court’s improper termination of Father’s parental rights under
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The ICA also cited our decision in In re Doe Born on
May 22, 1976, 84 Hawai#i 41, 928 P.2d 883 (1996) to conclude that
the CPA Provision and the Family Court Provision are not mutually
exclusive. In Doe, an action was initiated involving a minor
under certain family court provisions. Id. at 43, 928 P.2d at
885. This court held, inter alia, that the family court was
permitted to address the problems that arose under the CPA
regardless of whether the action was initiated under family court
provisions “or by way of a formal chapter 587 [CPA] petition.”
Id. at 52, 928 P.2d at 894. We referred to how the statutes
interact generally and made no reference to the specific
provisions that govern the termination of parental rights or the
additional permanent plan criterion in the CPA Provision.
Therefore, Doe is also not analogous to the specific statutory
conflict at issue here.
Male Child and Doe stand for the general proposition
that the CPA Provision and the Family Court Provision can be used
together to ensure that the best interests of the child are
provided for. However, when the family court finds that the
proposed permanent plan is not in the child’s best interests, the
CPA Provision and the Family Court Provision cannot be “read
together” to circumvent the CPA Provision’s permanent plan
criterion.
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IV. CONCLUSION
We agree with the ICA that the family court erred in
terminating Father’s parental rights under HRS § 587A-33, the CPA
Provision, without finding that DHS’s proposed permanent plan was
in KK’s best interests.
However, the ICA erred by invoking the Family Court
Provision to affirm the family court’s termination of Father’s
rights. Because the Family Court Provision does not reference a
permanent plan, the ICA’s substitution of the Family Court
Provision for the CPA Provision disregards the permanent plan
requirement set forth in the CPA Provision. The CPA envisioned
the implementation of permanent plans to bring safety and
stability to the children within its jurisdiction. By ignoring
the permanent plan requirement of the CPA Provision, the ICA
contravenes the explicit purpose of the CPA.
We therefore vacate the ICA’s judgment on appeal and
remand to the family court for further proceedings consistent
with this opinion.
Randal I. Shintani for /s/ Mark E. Recktenwald petitioner/father-appellant /s/ Paula A. Nakayama Julio C. Herrera, Ian T. Tsuda, and Patrick A. Pascual, /s/ Sabrina S. McKenna Deputy Attorneys General, for respondent-appellee Department /s/ Richard W. Pollack of Human Services /s/ Michael D. Wilson