NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 15-JAN-2025 09:33 AM Dkt. 86 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
IN THE INTEREST OF S.L.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 22-00155)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)
Mother-Appellant/Cross-Appellee K.M. (Mother) appeals
and Father-Appellee/Cross-Appellant J.L. (Father) cross-appeals
from the April 22, 2024 Order Terminating Parental Rights
(Termination Order) entered in the Family Court of the First
Circuit1 (Family Court), which terminated Mother's and Father's
(Parents') respective parental rights to their child, S.L.
(Child).
On appeal, Mother contends the Family Court erred in
terminating her parental rights because: (1) it failed to
explore legal guardianship as an alternative to adoption; (2) the
March 6, 2024 Permanent Plan (Permanent Plan) prepared by
1 The Honorable Rebecca A. Copeland presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Petitioner-Appellee/Cross-Appellee Department of Human Services
(DHS) does not explain why seven months is a reasonable time
period to complete Child's adoption; and (3) the Permanent Plan
fails to state whether Child's current foster placement with
Resource Caregivers (RCGs) would be his post-termination
permanent placement, which deprives Parents of an opportunity to
object, and prevents the Family Court from making a proper
determination as to the best interests of Child.2 Echoing
Mother's third point of error, Father contends that the Family Court clearly erred in finding by clear and convincing evidence
that the Permanent Plan is in the Child's best interest because
it fails to identify a proposed permanent placement. Parents
also challenge the Family Court's Findings of Fact (FOFs) 56, 58,
61, 71, 73, 165, 167, 168, and 173, and Conclusions of Law (COLs)
25, 35, and 36.
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 Parents'
arguments as follows:
(1) Mother contends that because the Family Court in FC-G No. 22-1-0073 awarded legal guardianship for four of her
other children, DHS must have provided a compelling reason why it
was in their best interests, which the Family Court failed to
explore in this case when it decided adoption was in Child's best
interests. In conjunction with this argument, Mother challenges
2 We liberally construe Parents' respective abbreviated opening briefs as collectively raising these three points of error.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
FOF 168,3 which she claims is clearly erroneous because there was
testimony that adoption was not in her other children's best
interests, as their resource caregiver did not want to adopt.
Hawaii Revised Statutes (HRS) § 587A-32(a) (2018)
provides: § 587A-32 Permanent Plan. (a) The permanent plan shall:
(1) State whether the permanency goal for the child will be achieved through adoption, legal guardianship, or permanent custody; (2) Establish a reasonable period of time by which the adoption or legal guardianship shall be finalized;
(3) Document:
(A) A compelling reason why legal guardianship or permanent custody is in the child's best interests if adoption is not the goal; or
(B) A compelling reason why permanent custody is in the child's best interests if adoption or legal guardianship is not the goal; (4) Establish other related goals, including those pertaining to the stability of the child's placement; education; health; therapy; counseling; relationship with the child's birth family, including visits, if any; cultural connections; and preparation for independent living;
(5) If a child has reached the age of fourteen, describe the services needed to assist the child with the transition from foster care to independent living; and (6) Describe the methods for achieving the goals and objectives set forth in paragraphs (4) and (5).
(Emphasis added).
3 FOF 168 states: 168. Based on the totality of the credible evidence and testimony, the court does not find the DHS acted improperly in seeking to terminate the parental rights over the child subject to this case, rather than seek legal guardianship as it did for any of the prior children who were also involved in foster custody cases.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRS § 587A-30 (2018) similarly states, inter alia, that
if a child is not expected to return to a safe family home, the
child's permanent placement out of the family home shall be "in
the following order of preference: (i) Adoption; (ii) Legal
guardianship; or (iii) Other permanent out-of-home placement[.]"
HRS § 587A-30(b)(5)(B).
Thus, Hawaii's Child Protective Act requires a
compelling reason when a permanent plan states a goal of legal
guardianship or permanent custody over adoption, not the other way around. Here, Mother argues that there must be a compelling
reason why guardianship should also be the goal for Child, but
she fails to identify one. Moreover, there was ample clear and
convincing evidence in the record concerning, inter alia,
unresolved substance abuse and domestic violence, which supported
a conclusion that neither Parent was able to provide a safe
family home, or would become able to do so within a reasonable
period, and therefore the Permanent Plan of adoption was in
Child's best interests. Accordingly, we conclude that Mother's
first point of error is without merit.
(2) Mother argues that the Permanent Plan fails to
explain why seven months from the date of the Permanent Plan is a
reasonable period to finalize Child's adoption, as required by
HRS § 587A-32(a). As set forth above, HRS § 587A-32(a)(2)
required that a permanent plan establish a reasonable period of
time for the adoption or guardianship to be finalized, but does
not mandate specific parameters for determining the reasonable
time. In this case, it appears that the proposed adoption was to
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
be finalized within five months after an April 17, 2024 hearing
on the termination of parental rights. The September 2024 date
allowed time for DHS to make a final decision regarding the
adoption and complete various requirements and documentation
before the first post-termination permanency hearing required
under HRS § 587A-31(a) (2018). Mother presents no specific
argument and cites no evidence in the record supporting a
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 15-JAN-2025 09:33 AM Dkt. 86 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
IN THE INTEREST OF S.L.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 22-00155)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)
Mother-Appellant/Cross-Appellee K.M. (Mother) appeals
and Father-Appellee/Cross-Appellant J.L. (Father) cross-appeals
from the April 22, 2024 Order Terminating Parental Rights
(Termination Order) entered in the Family Court of the First
Circuit1 (Family Court), which terminated Mother's and Father's
(Parents') respective parental rights to their child, S.L.
(Child).
On appeal, Mother contends the Family Court erred in
terminating her parental rights because: (1) it failed to
explore legal guardianship as an alternative to adoption; (2) the
March 6, 2024 Permanent Plan (Permanent Plan) prepared by
1 The Honorable Rebecca A. Copeland presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Petitioner-Appellee/Cross-Appellee Department of Human Services
(DHS) does not explain why seven months is a reasonable time
period to complete Child's adoption; and (3) the Permanent Plan
fails to state whether Child's current foster placement with
Resource Caregivers (RCGs) would be his post-termination
permanent placement, which deprives Parents of an opportunity to
object, and prevents the Family Court from making a proper
determination as to the best interests of Child.2 Echoing
Mother's third point of error, Father contends that the Family Court clearly erred in finding by clear and convincing evidence
that the Permanent Plan is in the Child's best interest because
it fails to identify a proposed permanent placement. Parents
also challenge the Family Court's Findings of Fact (FOFs) 56, 58,
61, 71, 73, 165, 167, 168, and 173, and Conclusions of Law (COLs)
25, 35, and 36.
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 Parents'
arguments as follows:
(1) Mother contends that because the Family Court in FC-G No. 22-1-0073 awarded legal guardianship for four of her
other children, DHS must have provided a compelling reason why it
was in their best interests, which the Family Court failed to
explore in this case when it decided adoption was in Child's best
interests. In conjunction with this argument, Mother challenges
2 We liberally construe Parents' respective abbreviated opening briefs as collectively raising these three points of error.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
FOF 168,3 which she claims is clearly erroneous because there was
testimony that adoption was not in her other children's best
interests, as their resource caregiver did not want to adopt.
Hawaii Revised Statutes (HRS) § 587A-32(a) (2018)
provides: § 587A-32 Permanent Plan. (a) The permanent plan shall:
(1) State whether the permanency goal for the child will be achieved through adoption, legal guardianship, or permanent custody; (2) Establish a reasonable period of time by which the adoption or legal guardianship shall be finalized;
(3) Document:
(A) A compelling reason why legal guardianship or permanent custody is in the child's best interests if adoption is not the goal; or
(B) A compelling reason why permanent custody is in the child's best interests if adoption or legal guardianship is not the goal; (4) Establish other related goals, including those pertaining to the stability of the child's placement; education; health; therapy; counseling; relationship with the child's birth family, including visits, if any; cultural connections; and preparation for independent living;
(5) If a child has reached the age of fourteen, describe the services needed to assist the child with the transition from foster care to independent living; and (6) Describe the methods for achieving the goals and objectives set forth in paragraphs (4) and (5).
(Emphasis added).
3 FOF 168 states: 168. Based on the totality of the credible evidence and testimony, the court does not find the DHS acted improperly in seeking to terminate the parental rights over the child subject to this case, rather than seek legal guardianship as it did for any of the prior children who were also involved in foster custody cases.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRS § 587A-30 (2018) similarly states, inter alia, that
if a child is not expected to return to a safe family home, the
child's permanent placement out of the family home shall be "in
the following order of preference: (i) Adoption; (ii) Legal
guardianship; or (iii) Other permanent out-of-home placement[.]"
HRS § 587A-30(b)(5)(B).
Thus, Hawaii's Child Protective Act requires a
compelling reason when a permanent plan states a goal of legal
guardianship or permanent custody over adoption, not the other way around. Here, Mother argues that there must be a compelling
reason why guardianship should also be the goal for Child, but
she fails to identify one. Moreover, there was ample clear and
convincing evidence in the record concerning, inter alia,
unresolved substance abuse and domestic violence, which supported
a conclusion that neither Parent was able to provide a safe
family home, or would become able to do so within a reasonable
period, and therefore the Permanent Plan of adoption was in
Child's best interests. Accordingly, we conclude that Mother's
first point of error is without merit.
(2) Mother argues that the Permanent Plan fails to
explain why seven months from the date of the Permanent Plan is a
reasonable period to finalize Child's adoption, as required by
HRS § 587A-32(a). As set forth above, HRS § 587A-32(a)(2)
required that a permanent plan establish a reasonable period of
time for the adoption or guardianship to be finalized, but does
not mandate specific parameters for determining the reasonable
time. In this case, it appears that the proposed adoption was to
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
be finalized within five months after an April 17, 2024 hearing
on the termination of parental rights. The September 2024 date
allowed time for DHS to make a final decision regarding the
adoption and complete various requirements and documentation
before the first post-termination permanency hearing required
under HRS § 587A-31(a) (2018). Mother presents no specific
argument and cites no evidence in the record supporting a
determination that this was not a reasonable amount of time. We
cannot conclude that this argument provides a basis for appellate relief.
(3) Mother argues that, in the Permanent Plan, DHS
must unambiguously identify who DHS believes should adopt Child.
It appears, however, that Mother recognizes that this is not a
requirement stated in the Hawai#i Child Protection Act or any
case law thereon. Mother contends that approval of the Permanent
Plan without the identification of the proposed placement was not
in Child's best interest because Parents would be denied an
opportunity to present evidence that a particular proposed
placement was not in Child's best interests. However, the plain
language of HRS § 587A-32 requires only that the permanent plan
state "whether the permanency goal for the child will be achieved
through adoption, legal guardianship, or permanent custody,"
(emphasis added), and nothing in the statutory language supports
a conclusion that it must also identify a specific permanent
placement. Indeed, the case Mother cites, In the Interest of SP,
CAAP-XX-XXXXXXX, 2014 WL 1658601 (Haw. App. Apr. 25, 2014) (SDO),
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
weighs against her argument. Therein, this court held: Specification of adoptive parents is not required in a proposed permanent plan under Hawaii Revised Statutes (HRS), § 587A–32 (Supp. 2013). In addition, under HRS § 587A–33(b)(3) (Supp. 2013), after the [Family Court] terminates parental rights, terminates the existing service plan, and revokes foster custody, the permanent custody of the child shall be awarded to an appropriate authorized agency. Thus, the family court cannot approve a permanent plan that specifies adoptive parents because it is contrary to HRS § 587A–33(b)(3). . . . . . . . [T]he issue of the permanent adoption of SP is not determined until after termination of Mother's parental rights and approval of a permanent plan and approval by the [Family Court] after a permanency hearing.
Id. at *1-2 (emphases added); see also Interest of K.K., CAAP-23-
0000058, 2024 WL 490880, at *3 n.4 (Haw. App. Feb. 8, 2024) (SDO)
(noting that specification of adoptive parents is not required in
a proposed permanent plan).
Though it appears that a pre-termination permanent plan
may identify a proposed permanent placement as part of its
permanency goal, it is not required to do so, as the final
determination of permanent placement is not required to be
decided until after termination. See Interest of AB, 145 Hawai#i
498, 516–17, 454 P.3d 439, 457–58 (2019) ("[U]pon termination of
parental rights, discretion to determine an appropriate custodian
is vested in DHS.") (quoting In re Doe, 100 Hawai#i 335, 346, 60
P.3d 285, 296 (2002)).
We have carefully reviewed each of Parents' related
challenges to specific FOFs and COLs, and we conclude that the
Family Court did not clearly err in FOFs 56, 58, 61, 71, 73, 165,
167, 168, and 173, and COLs 25, 35, and 36 are not wrong.
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For these reasons, the Family Court's April 22, 2024
Termination Order is affirmed.
DATED: Honolulu, Hawai#i, January 15, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Herbert Y. Hamada for Mother-Appellant/ /s/ Keith K. Hiraoka Cross-Appellee. Associate Judge
Crystal M. Asano /s/ Clyde J. Wadsworth for Father-Appellee/ Associate Judge Cross-Appellant.
Joy S. Wills, Julio C. Herrera, Erin K.S. Torres, Kurt J. Shimamoto, Deputy Attorneys General, Department of the Attorney General, for Petitioner-Appellee/ Cross-Appellee.