FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

IN THE INTEREST OF HV AND MV

NO. CAAP-20-0000707

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-S NO. 19-00154)

DECEMBER 30, 2021

GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ. 

OPINION OF THE COURT BY NAKASONE, J.

Petitioner-Appellant State of Hawai#i, Department of

Human Services (DHS), appeals from the Orders Concerning Child

Protective Act, filed on November 12, 2020 (November 12, 2020

Payment Order), by the Family Court of the First Circuit (Family

Court).1

 Pursuant to Hawaii Revised Statutes (HRS) § 587A-16(b)

(2018) and HRS § 587A-41 (2018),2 the Family Court ordered the

DHS to pay for an evaluation of the alleged natural father of MV3

(Father) to determine whether to appoint a guardian ad litem

(GAL) for him. On March 10, 2021, the Family Court filed its

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

2 These statutes are quoted infra.

3 MV, along with HV, are the subject children in this HRS Chapter

587A Child Protective Act case.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000707

30-DEC-2021

08:19 AM

Dkt. 60 OP
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Findings of Fact and Conclusions of Law (FOFs/COLs) for the

November 12, 2020 Payment Order.4

On appeal, the DHS contends that Father's evaluation

for a GAL appointment under HRS § 587A-16(b)5 was not a 

4 The March 10, 2021 FOFs/COLs were filed after the DHS's Opening

Brief was filed on January 21, 2021.

5 HRS § 587A-16(b) provides: 

[§587A-16] Guardian ad litem. . . .

(b) The court may appoint a guardian ad litem

for an incapacitated adult party, as set forth below:

(1) Upon the request of any party or sua

sponte, the court may order a professional

evaluation of an adult party to determine

the party's capacity to substantially:

(A) Comprehend the legal significance of

the issues and nature of the proceedings

under this chapter;

(B) Consult with counsel; and

(C) Assist in preparing the party's case

or strategy;

(2) If the court orders a professional

evaluation, the party shall be examined by a

physician, psychologist, or other individual 

appointed by the court who is qualified to 

evaluate the party's alleged impairment:

(A) Unless otherwise directed by the

court, the examiner shall promptly

file with the court a written report

which shall contain:

(i) A description of the nature,

type, and extent of the

party's specific cognitive and

functional capabilities and

limitations;

(ii) An evaluation of the party's

mental and physical condition

and, if appropriate,

educational potential,

adaptive behavior, and social

skills;

(iii) A prognosis for improvement

and a recommendation as to the

appropriate treatment or

habilitation plan; and

(iv) The dates of any assessments

or examinations upon which the

report is based;

(B) Upon the request of any party or sua

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"service" within the meaning of HRS § 587A-41,6 and therefore,

the Family Court lacked authority to order the DHS to pay for

Father's evaluation.7

We hold that, because this evaluation was a

"professional evaluation" under HRS § 587A-16(b)(1) to determine

Father's need for a GAL in the Family Court proceedings, the

payment provision in HRS § 587A-16(f) applies. The record

reflects that this evaluation was not a "psychological

evaluation" that the DHS would provide as a "service" under HRS § 

sponte, and after such hearing as

the court deems appropriate, the

court may appoint a guardian ad

litem for an adult party only after

a determination, by clear and

convincing evidence, that:

(i) The party is an incapacitated

person; and

(ii) The party's identified needs

cannot be met by less

restrictive means, including

the use of appropriate and

reasonably available

assistance.

. . . .

(f) The fees and costs of a guardian ad litem 

appointed pursuant to this section may be paid by the 

court, unless the party for whom counsel is appointed 

has an independent estate sufficient to pay such fees 

and costs. The court may order the appropriate parties 

to pay or reimburse the fees and costs of the guardian 

ad litem and any attorney appointed for the child.

(Bolding in original) (emphasis added).

6 HRS § 587A-41 provides:

[§587A-41] Payment for service or treatment provided to a

party or for a child's care, support, or treatment. (a) 

Whenever a service or treatment is provided to a party, or

whenever care, support, or treatment of a child is provided

under this chapter, the court may order the payment of such

expenses by the persons or legal entities who are legally

responsible for the same, after reasonable notice and

hearing as the court directs.

(b) The provisions of section 571-52 and all other

remedies available under the law shall be applicable to

enforce orders issued pursuant to this section.

(Bolding in original) (emphasis added).

7 No other party filed an answering brief.

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587A-41. The Family Court erroneously ordered the DHS to pay for

the evaluation for Father in this case, and we reverse.

I. BACKGROUND

This case arose out of proceedings the Family Court

conducted for the DHS's July 8, 2019 petition for temporary

foster custody of the subject children. See FOFs 1 and 4. On

August 4, 2020, Father's counsel requested a GAL be appointed for

him. FOF 9. Pursuant to HRS § 587A-16(b) and based upon

Father's counsel's request, the Family Court ordered Father to

participate in a "psychological evaluation"8 with Dr. Barbara

Higa Rogers (Dr. Higa Rogers) to determine if Father required the

appointment of a GAL. FOF 10.

Dr. Higa Rogers's August 28, 2020 assessment indicated

that the reason for the referral was for a mental health

assessment to evaluate Father's "capacity to substantially: A) 

Comprehend the legal significance of the issues and nature of the

proceedings[;] B) Consult with counsel[;] and C) Assist in

preparing the party's case or strategy." Dr. Higa Rogers opined

that Father "could benefit from a GAL at this time," because

Father was "likely to have difficulty in the courtroom fully

understanding what is occurring and will likely experience

difficulty assisting his attorney." The report concluded: "the

primary goal of this exam was to address [Father's] potential

need of a GAL, which at this time, this examiner supports. In

the context of his mental health, significant concerns arise but

are beyond the scope of this evaluation."

On September 16, 2020, the Family Court conducted a

hearing to determine whether the DHS would agree to pay for Dr.

Higa Rogers's $650.00 invoice, and the DHS did not agree. FOF

11. On September 29, 2020, the Family Court held a contested

hearing on the issue of which entity was responsible for paying

Dr. Higa Rogers's invoice: the DHS or the Family Court. FOF 12. 

At the hearing, the DHS argued that Father's evaluation for a GAL

8 The Family Court used the term "psychological evaluation" to refer

to the HRS § 587A-16(b) GAL evaluation. Because HRS § 587A-16(b) uses the term

"professional evaluation" and not "psychological evaluation," we use the

statutory terminology of "professional evaluation" here.

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was not requested by the DHS, was not part of the DHS service

plan for Father, and that the Family Court had, in practice, paid

for these evaluations in the past. Father's counsel argued that

the DHS should pay for the invoice. Over the DHS's objection,

the Family Court ordered the DHS to pay for the invoice. FOF 13.

On November 12, 2020, the DHS's Motion for

Reconsideration on the payment order was denied.9 FOF 14. The

Family Court subsequently entered FOFs/COLs that included the

following pertinent to this appeal:

[(FINDINGS OF FACT)]

10. Based upon [Father's Counsel's] request and

pursuant to Sec. 587A-16(b), Hawaii Revised Statutes

("HRS"), the Court ordered that [Father] participate in a

psychological evaluation by Dr. BARBAR [sic] HIGA-ROGERS. 

This evaluation was a service to be provided to [Father] in

order to determine if he required the appointment of a

guardian ad litem. No order was entered as to payment for

the psychological evaluation.

. . . .

[(CONCLUSIONS OF LAW)]

1. Sec. 587A-41, HRS, allows the Family Court

to order payment of expenses when those expenses relate to 

a "service or treatment to a party . . . ." Payment for these 

expenses may be ordered to be made by the "legal entities 

who are legally responsible for the same, after reasonable 

notice and hearing as the Court directs."

2. Sec. 587A-16(b), HRS, governs the

appointment of a guardian ad litem for an incapacitated

adult. The fees and costs of a guardian ad litem, after

appointment, may be paid by the Family Court. See. [sic]

Sec 587A-16(f), HRS.

3. Nothing in Section 587A-16, HRS, states, 

or even infers, that the cost of a psychological evaluation 

prior to the appointment of a guardian ad litem for an

incapacitated adult is to be borne by Family Court.

4. DHS has provided no statutory or case-law

support for this Court to conclude that Family Court is

liable for such a fee or cost.

5. The psychological evaluation as conducted 

in this case is a "service provided to a party" under Sec. 

587A-41, HRS. It is a natural and necessary process and 

expense that has to be conducted for the DHS to meet its

requirement of "reasonable efforts" in each and every case.

Without such an evaluation, the case cannot move forward to 

9 The November 12, 2020 Payment Order states: "DHS' Motion for

Reconsideration and to stay order is denied. DHS shall pay the invoice for

Dr. Barbara Higa Rogers within two (2) weeks."

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either reunification or permanency. 

6. Furthermore, without such an evaluation, DHS

would be unable to meet its many obligations as delineated

in Sec. 587A-15, HRS.

7. As such, the Court concludes and orders that

Dr. HIGA-ROGERS' invoice in the amount of $650.00 is a cost

properly paid by DHS.

(Underscoring in original). The DHS timely appealed the November

12, 2020 Payment Order. 

II. STANDARDS OF REVIEW

Statutory Interpretation

"Statutory interpretation is a question of law

reviewable de novo." JD v. PD, 149 Hawai#i 92, 96, 482 P.3d 555,

559 (App. 2021) (citation omitted). In construing statutes, we

observe the following principles:

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.

Id. (citation omitted).

Conclusions of Law

"The family court's conclusions of law are ordinarily

reviewed de novo, under the right/wrong standard, 'and are freely

reviewable for their correctness.'" JW v. RJ, 146 Hawai#i 581,

585, 463 P.3d 1238, 1242 (App. 2020) (citing Fisher v. Fisher,

111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)).

III. DISCUSSION

A. Because this evaluation was a "professional

evaluation" to determine Father's need for a

GAL in the Family Court proceedings, the

payment provision of HRS § 587A-16(f) applies.

The DHS contends that "[t]he family court is

statutorily responsible for the costs for a GAL for a parent as

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outlined in HRS § 587A-16(f), which should include an evaluation

under this chapter."

At issue in this appeal is whether the subsection (f)

payment provision of HRS § 587A-16 applies to the subsection

(b)(1) professional evaluation ordered in this case. We conclude

that it does.

HRS § 587A-16(f) provides: "The fees and costs of a

guardian ad litem appointed pursuant to this section may be paid

by the court . . . ." The Family Court ordered an evaluation for

Father "pursuant to Sec. 587A-16(b)" to determine whether he

required the appointment of a guardian ad litem. FOF 10. Thus,

this evaluation was a "professional evaluation" of Father under

HRS § 587A-16(b)(1), to determine Father's need for a GAL to aid

him in the proceedings before the Family Court. A professional

evaluation determines the party's capacity to comprehend the

proceedings, consult with counsel, and assist in case

preparation. HRS § 587A-16(b)(1)(A)-(1)(C). 

Here, Dr. Higa Rogers' evaluation was ordered by the

Family Court under HRS § 587A-16(b)(1), following the September

29, 2020 hearing where Father's counsel "requested that [Father]

be evaluated for a guardian ad litem." The evaluation report

stated that the reason for the referral was "to evaluate

[Father's] capacity to substantially: A) Comprehend the legal

significance of the issues and nature of the proceedings[;] B)

Consult with counsel[;] and C) Assist in preparing the [Father]'s

case or strategy." These reasons are the statutory factors that

must be assessed to determine whether to appoint a GAL under HRS

§ 587A-16(b)(1). HRS § 587A-16(f) plainly applies to the

subsection (b)(1) professional evaluation in this case. See JD,

149 Hawai#i at 96; 482 P.3d at 559.

In COL 2, the Family Court concluded that the HRS §

587A-16(f) payment provision applied only after a GAL is

appointed, as follows: "the fees and costs of a [GAL], after

appointment, may be paid by the Family Court." (Emphasis added). 

The actual language of HRS § 587A-16(f), however, does not

expressly limit the Family Court's payment authority to the

period "after appointment" of a GAL. Contrary to the Family

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Court's conclusion, the statute includes fees and costs for a GAL

"appointed pursuant to this section." HRS § 587A-16(f). This

may include fees and costs, prior to an actual appointment of a

GAL, that are necessarily incurred as a court determines whether

to appoint a GAL under HRS § 587A-16(b).

We conclude that the payment provision in HRS § 587A16(f) applies to the fee for Dr. Higa Rogers's subsection (b)(1)

professional evaluation of an adult party like Father, who may be

incapacitated and need an appointed GAL. The Family Court's

conclusions (COLs 2, 3, and 4) interpreting HRS § 587A-16(f) as

inapplicable to this case, were erroneous. See JW, 146 Hawai#i

at 585, 463 P.3d at 1242.

B. The record reflects that this evaluation was 

not a "psychological evaluation" that the DHS

would provide as a "service" under the HRS § 

587A-41 payment statute.

In COLs 1 and 5, the Family Court quoted HRS § 587A-41,

and concluded that the "psychological evaluation as conducted in 

this case is a 'service provided to a party' under Sec. 587A-41,"

because the examination "is a natural and necessary process and

expense" for "the DHS to meet its requirement of 'reasonable

efforts' in each and every case." COL 5. On appeal, the DHS

contends that "[a]n evaluation for a GAL for a parent is not a

'service' under [HRS] § 587A-41(a);" and that the Family Court's

conclusion was wrong.

"[T]he family court's jurisdiction is not so broad that

it extends to the ability to simply order anyone to pay for

needed services. Obviously, there must be a legal basis

establishing an obligation to pay." In re Doe, 96 Hawai#i 272,

286, 30 P.3d 878, 892 (2001). The DHS acknowledges that it

"routinely pays for psychological evaluations, which are outlined

in the DHS service plans and are designed to assist the DHS in

identifying the existing safety issues and the services necessary

to address those safety issues." Citing Doe, 96 Hawai#i at 286,

30 P.3d at 892, the DHS asserts that "the DHS is not legally

obligated to pay for evaluations for GALs for parents" in Child

Protective Act cases under HRS Chapter 587A. The DHS argues that

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GAL evaluations are "distinguishable" from psychological

evaluations "used by the DHS to determine which services" are

needed "to address the identified safety issues and reunify the

child with the parent[.]" The DHS's argument is persuasive.

HRS § 587A-41 provides for payment to be made by the

"legally responsible" entity "[w]henever a service or treatment

is provided to a party . . . under this chapter . . . ." Under

HRS Chapter 587A, the Child Protective Act, the results of

psychological evaluations are expressly enumerated in HRS § 587A7(a)(5) (2018)10 as a factor that must be considered in

evaluating a family member's ability to provide a safe family

home for the child. A psychological evaluation may also be among

the services that the DHS provides to facilitate the return of

the child to a safe family home. See HRS § 587A-27 (2018).11

Here, the Family Court expressly ordered Father's

evaluation pursuant to the GAL statute, HRS § 587A-16, which made

it a "professional evaluation" under HRS § 587A-16(b)(1), and not

a psychological evaluation to assess Father's ability, or lack

10 HRS § 587A-7(a)(5) provides:

[§587A-7] Safe Family home factors.

(a) The following factors shall be fully considered 

when determining whether a child's family is willing and 

able to provide the child with a safe family home:

. . . .

(5) Results of psychiatric, psychological, or

developmental evaluations of the child, the alleged

perpetrators, and other family members who are parties[.]

(Bolding in original).

11 HRS § 587A-27 provides:

§587A-27 Service plan.

(a) The service plan shall provide:

(1) The specific steps necessary to facilitate the

return of the child to a safe family home, if the proposed

placement of the child is in foster care under foster

custody. These specific steps shall include treatment and

services that will be provided, actions completed, specific

measurable and behavioral changes that must be achieved, and

responsibilities assumed . . . .

(Bolding in original) (emphases added).

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thereof, to provide a safe family home. Dr. Higa Rogers's

evaluation assessed the statutory factors to determine Father's

capacity under HRS § 587A-16(b)(1)(A),(B) and (C); the evaluation

did not assess whether Father was "willing and able to provide

the child with a safe family home" under HRS § 587A-7(a)(5). 

Accordingly, COL 5's conclusion, that the evaluation in this case

was a "service provided to a party" subject to the payment

provision in HRS § 587A-41, was erroneous. See JW, 146 Hawai#i

at 585, 463 P.3d at 1242. 

IV. CONCLUSION

For the foregoing reasons, we conclude that the Family

Court erroneously ordered the DHS to pay for the HRS § 587A-16(b)

professional evaluation in this case. Rather, HRS § 587A-16(f)

is applicable.

Accordingly, the Orders Concerning Child Protective

Act, filed on November 12, 2020 by the Family Court of the First

Circuit, are reversed with respect to the Family Court's order to

the DHS to pay for the invoice of Dr. Barbara Higa Rogers.

On the brief:

Lianne L. Onishi

Deputy Attorney General

for Petitioner-Appellant

Department of Human Services

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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