In re: ASK.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***




                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         27-DEC-2022
                                                         09:06 AM
                                                         Dkt. 14 OPA




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                              ---o0o---



                      IN THE INTEREST OF ASK


                          SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
     (CAAP-XX-XXXXXXX; FC-S NO. 18-00112, FC-S NO. 18-00241,
             FC-A NO. 20-1-6137, FC-A NO. 21-1-6005)

                         DECEMBER 27, 2022

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

                OPINION OF THE COURT BY EDDINS, J.

                                 I.

     The family court has to consider sixteen factors to guide

its best interests of the child finding in parental custody and

visitation cases.   See Hawai‘i Revised Statutes (HRS) § 571-46(b)

(2018).   But there are no statutory factors to guide a family

court’s “best interests of the individual” finding in adoption
and permanent placement cases.   See HRS § 578-8 (2018 & Supp.

2019).

     So what’s a family court to do when faced with competing

petitions for adoption of three young siblings?

     In petitions for adoption and permanent placement, we hold

that a family court is free to consider any admissible evidence

that addresses its dispositive fact of consequence, the best

interests of the individual.   This may include evidence

supporting some best interests factors listed in HRS § 571-

46(b).   And it may include much more.     Only the rules of

evidence confine the family court as it finds, weighs, and

values facts to reach its best interests determination.

     Because the Family Court of the First Circuit properly

assessed the relevant evidence to support its best interests of

the individual determination, we affirm its orders.

                                 II.

     In 2018, the Department of Human Services (DHS) received

reports of parental neglect involving two siblings, three-year

old and seven-month old sisters.       DHS assumed temporary foster

custody of the Children under the Child Protective Act (CPA).

It placed the Children with a DHS-vetted family, the Resource

Caregivers (RCGs).   Months later a brother was born; DHS took

custody and placed the newborn with his sisters in RCGs’ home.




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     The Children’s mother died in 2019 while CPA proceedings

were ongoing.   DHS then moved to terminate Father’s parental

rights.   Father stipulated to the termination of his parental

rights in July 2020.

     Once parental rights terminate, DHS assumes legal custody

and must find the child a suitable permanent home.   In re Doe,

100 Hawai‘i 335, 346 n.19, 

, 296 n.19 (2002).    DHS

also has to consent to the proposed adoption of a child in its

custody under HRS § 578-2(6) (2018), though its placement

decision is subject to the family court’s independent best

interests determination.   See In re AS, 132 Hawai‘i 368, 378, 

 (2014).

     In 2020, the Children’s paternal Aunt and Uncle (Relatives)

from California successfully moved to intervene in the CPA’s

permanent placement and adoption proceedings.

     DHS filed a petition on RCGs’ behalf to adopt the Children.

DHS recommended permanent placement with RCGs in October 2020.

In January 2021, Relatives filed their own petition to adopt the

Children.   DHS opposed the petition and filed a Notice of the

Department of Human Services’ Withholding of Consent to

[Relatives’] Adoption Petition.

     The family court consolidated the dual adoption cases.       It

held a four-day trial on the Children’s adoption and permanent




                                  3
placement. 1    When trial started, the sisters had lived with RCGs

for about two years and seven months, and their younger brother

had lived with RCGs for two years and two months.

     The family court found that adoption by the RCGs was in

each child’s best interests and confirmed DHS’s placement

decision.      The court checklisted HRS § 571-46(b).   It marched

through all sixteen factors, recognized most did not apply, and

considered other factors including finances and kinship.       It

decided on balance that the pertinent evidence favored RCGs.

     The court granted DHS’s petition for adoption by Resource

Caregivers.      And it denied the petition for adoption by the

Children’s paternal Aunt and Uncle.

     Relatives appealed.      They challenge the court’s use of HRS

§ 571-46(b)’s factors, and claim the family court failed to

adequately consider best interests factors in their favor, like

“blood” and money.      They also say the court applied an incorrect

legal standard and failed to independently review DHS’s

placement recommendation.

     The Intermediate Court of Appeals affirmed the family

court’s orders.      Now Relatives repeat their arguments and urge

“this court [to] clarify what factors are to be applied by the




1    The Honorable John C. Bryant, Jr. presided.



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trial courts to determine best interests in permanent placement

proceedings and adoption proceedings.”

                                   III.

     Contrary to Relatives’ assertions, a family court does not

necessarily err when it relies on HRS § 571-46(b)’s mandatory

custody and visitation factors to guide a best interests

determination in adoption and permanent placement proceedings.

But Relatives make a cogent point that the factors are mostly

ill-suited to an adoption and permanent placement case.

     Because most of the custody and visitation factors focus on

parents – their history, characteristics, and quality of

relationship with their child – once parental rights terminate,

those factors recede.     HRS § 571-46 is titled “Criteria and

procedure in awarding custody and visitation.”          (Emphasis

added.)   HRS § 571-46(b) lists the factors 2 that family courts


2    Under HRS § 571-46(b):

           In determining what constitutes the best interest of the
           child under this section, the court shall consider, but not
           be limited to, the following:

                 (1) Any history of sexual or physical abuse of a
                 child by a parent;

                 (2) Any history of neglect or emotional abuse of a
                 child by a parent;

                 (3) The overall quality of the parent-child
                 relationship;

                 (4) The history of caregiving or parenting by each
                 parent prior and subsequent to a marital or other
                 type of separation;




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“shall consider” to determine whether a parent is awarded

custody or visitation of a child.           Only five of the sixteen

factors directly link to “the needs of the child.”                 See HRS

§§ 571-46(b)(6) - (10).         So in post-parental termination cases,

there is no reason to require family courts to do what the court

did here - evaluate each custody and visitation factor.                  See In




                    (5) Each parent’s cooperation in developing and
                    implementing a plan to meet the child’s ongoing
                    needs, interests, and schedule; provided that this
                    factor shall not be considered in any case where the
                    court has determined that family violence has been
                    committed by a parent;

                    (6) The physical health needs of the child;

                    (7) The emotional needs of the child;

                    (8) The safety needs of the child;

                    (9) The educational needs of the child;

                    (10) The child’s need for relationships with
                    siblings;

                    (11) Each parent’s actions demonstrating that they
                    allow the child to maintain family connections
                    through family events and activities; . . .

                    (12) Each parent’s actions demonstrating that they
                    separate the child’s needs from the parent’s needs;

                    (13) Any evidence of past or current drug or alcohol
                    abuse by a parent;

                    (14) The mental health of each parent;

                    (15) The areas and levels of conflict present within
                    the family; and

                    (16) A parent’s prior wilful [sic] misuse of the
                    protection from abuse process under chapter 586 to
                    gain a tactical advantage in any proceeding involving
                    the custody determination of a minor. . . .

(Emphases added.)



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the Interest of Hannah L., 

 (Alaska 2017)

(rejecting petitioner’s argument that family courts must base

adoption best interests determinations on the factors required

in child custody cases).

     Further distancing the parental custody factors from

adoption and permanent placement, HRS § 578-8 concerns the

adoption of an individual.      It requires that an “adoption will

be for the best interests of the individual.” 3         Individuals come

in all ages.   And have varied needs.       So HRS § 571-46(b)’s best

interests of a child factors do not neatly migrate to HRS § 578-

8’s best interests of an individual determination.

     Relatives believe the family court’s reliance on HRS § 571-

46(b) meant the court placed “unreasonable weight” on the

Children’s attachment to RCGs, while undervaluing other factors.

They argue that the mandatory parental custody factors should


3    HRS § 578-8(a) reads:
           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:

                (1) The individual is adoptable under sections 578-1
                 and 578-2;

                (2) The individual is physically, mentally, and
                 otherwise suitable for adoption by the petitioners;

                (3) The petitioners are fit and proper persons and
                 financially able to give the individual a proper home
                 and education, if the individual is a child; and

                (4) The adoption will be for the best interests of
                 the individual.



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not be given presumptive weight in adoption and permanent

placement proceedings.

      True, there is no statutory provision that gives some

evidence superior probative value over other evidence in

adoption and permanent placement cases.          But here the family

court did not automatically boost the value of attachment

evidence, or any evidence.       The court merely attached probative

value to that evidence.       It did not treat attachment as a

statutory super-factor or give that evidence preferential

treatment.    Rather, it weighed the attachment evidence alongside

the other evidence and found it valuable.

      Under the circumstances of the case, the family court

viewed the attachment evidence as compelling.           The court

believed that removing the Children from RCGs’ home would not

serve their best interests.       It explained that the Children

identify RCGs as their parents, and the RCGs’ home as their

home.   The court stressed the importance of stability in the

Children’s lives.     It also valued the oldest child’s distinct

needs as the only sibling who remembered being neglected and

abused. 4

      Relatives’ claim that the family court disregarded relevant

evidence is misplaced.      They argue that the court focused only



4     The court found the child’s removal from RCGs’ home, “even with
prophylactic measures, is not a justifiable risk to [her] emotional health.”


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on the HRS § 571-46(b) factors.        Thus, it ignored, or at least

undervalued, evidence about their financial status and blood

relationship to the Children.       The court, however, factored the

finances of both prospective adoptive families.           It also

considered evidence of Relatives’ kinship to the Children.             This

evidence, though, did not alter the court’s best interests

determination.

                                    IV.

     Since HRS § 578-8 has no best interests factors and HRS

§ 571-46(b)’s best interests factors do not entirely align with

the court’s key inquiry, how does a family court become

“satisfied . . . [t]he adoption will be for the best interests

of the individual”?

       It values the evidence.      Like in any trial.

       In petitions for adoption and permanent placement, a

family court should consider all admissible evidence to

determine the best interests of the individual.           This may

include evidence supporting a pertinent best interests factor

listed in HRS § 571-46(b).       And it may include other relevant

evidence. 5   Only the rules of evidence confine the family court.


5     We stress that HRS § 571-46(b)’s factors may be relevant in adoption
and permanent placement cases. For instance, courts must consider admissible
evidence about a prospective adoptive parent’s: “history of sexual or
physical abuse of a child,” HRS § 571-46(b)(1); “history of neglect or
emotional abuse of a child,” HRS § 571-46(b)(2); “past or current drug or
alcohol abuse,” HRS § 571-46(b)(13); and “mental health,” HRS § 571-
46(b)(14).


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We also hold that within this typical trial framework, there are

no statutory presumptions, no “super-factors,” and no evidence

that deserves automatic preferential treatment.

     Our view reflects a central feature of any trial: the fact-

finder – judge or jury - finds facts, weighs and values those

facts, and finds other facts, the facts of consequence.      The

dispositive fact of consequence in adoption and permanent

placement trials is what outcome serves the individual’s best

interests.    Our approach squares with HRS § 578-8, which

instructs family courts to consider “any evidence as the

petitioners and any other properly interested person may wish to

present.”    (Emphasis added.)   This law’s panoramic outlook suits

the family court’s broad discretion in best interests

determinations.    It allows the court to find and weigh any fact

- under case-specific circumstances - that is helpful to its

best interests determination.    See, e.g., Matter of Adoption of

ZEM, 

 (Wyo. 2020) (“A court may consider numerous

factors when determining whether an adoption is in the child’s

best interests. . . .    No single factor is determinative and

depending on the case, different factors will present a greater

need for emphasis.    The one constant is that the resolution must

be in the best interests of the children in that particular

family.” (cleaned up)); 2 Am. Jur. 2d Adoption § 131 (Nov. 2022

Update) (“[A] judge may consider a wide range of permissible


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evidence in determining which placement will serve the child’s

best interests, and it is for the trial judge to determine the

weight of the evidence.”).

                                 V.

     We turn to whether the family court independently reviewed

DHS’s placement recommendation and properly found that the

Children’s adoption by RCGs was in their best interests.

     Relatives maintain that the court rubber-stamped DHS’s

permanent placement recommendation.    They say the court did not

make an independent determination of the Children’s best

interests.    See In re AS, 132 Hawai‘i at 378, 

(holding DHS’s placement decisions remain subject to the family

court’s “independent best interests review”).    The record belies

Relatives’ claim.

     The court did not uncritically accept DHS’s placement

decision.    Rather, the family court meaningfully assessed the

admissible evidence to determine which adoption served the

Children’s best interests.    In a 46-page order, the court made

over 200 findings of fact and 43 conclusions of law.    There was

no rubber-stamp.

     The family court’s review contrasts with the court’s

actions in In re AB, 145 Hawai‘i 498, 517–18, 

, 458–

59 (2019).    There the court did not independently determine that

DHS’s out-of-state permanent placement decision served a child’s


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best interests.   The court “simply said, ‘All right’ and moved

on” without considering alternatives to out-of-state placement

or the decision’s impacts on the child’s relationships and

stability in Hawai‘i.   

     Here, we conclude that the family court properly considered

the admissible evidence and found that adoption and permanent

placement with RCGs served the Children’s best interests.         The

court did not abuse its discretion.       See Fisher v. Fisher, 111

Hawai‘i 41, 46, 

 (2006) (holding that “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”).

                                  VI.

     We affirm the ICA’s Judgment on Appeal and the Family Court

of the First Circuit’s April 6, 2021 Order affirming DHS’s

permanent placement of the Children with RCGs and denying

Relatives’ adoption petition.

Francis T. O’Brien                      /s/ Mark E. Recktenwald
(Brett A. Ritter on the briefs)
                                        /s/ Paula A. Nakayama
for petitioner
                                        /s/ Sabrina S. McKenna
Patrick A. Pascual and
                                        /s/ Michael D. Wilson
Julio C. Herrera
(Ian T. Tsuda and Regina Anne           /s/ Todd W. Eddins
Mormad Shimada on the briefs)
for respondent




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