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NOS. CAAP-22-0000162 & CAAP-22-0000675

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-22-0000162

IN THE INTEREST OF KK

(FC-S NO. 19-00039)

AND

CAAP-22-0000675

IN THE MATTER OF THE GUARDIANSHIP OF KK

(CASE NO. 1GD211006285)

APPEALS FROM THE FAMILY COURT OF THE FIRST CIRCUIT

MEMORANDUM OPINION

(By: Leonard, Presiding Judge, and Wadsworth and Chan, JJ.)

In these consolidated appeals, Appellant Mother

(Mother) appeals from the following orders entered in the Family

Court of the First Circuit (family court): (1) the March 10,

2022 Orders Concerning Child Protective Act (CPA Orders), entered

in FC-S No. 19-00039 (CPA Case); and (2) the March 18, 2022 Order

Appointing a Guardian of a Minor (Guardianship Order), entered in

FC-G No. 21-1-6285 (Guardianship Case).1/ The CPA Orders revoked

Appellee Department of Human Services' (DHS) foster custody of

Mother's child, KK; denied Mother's February 1, 2022 Motion for

Family Supervision; and terminated the family court's

1/ The Honorable Jessi L.K. Hall presided over the consolidated trial

on the November 16, 2021 Petition for Appointment of Guardian of a Minor

(Guardianship Petition), filed in the Guardianship Case, and Mother's Motion

for Family Supervision, filed in the CPA Case, and entered the Guardianship

Order and the CPA Orders. 

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000162

18-MAY-2023

09:30 AM

Dkt. 67 MO
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jurisdiction. The Guardianship Order appointed KK's resource

caregiver, who is also KK's maternal uncle (Uncle), as KK's

guardian. 

On appeal, Mother contends that the family court erred: 

(1) in denying Mother's Motion for Family Supervision; (2) in

interpreting Hawaii Revised Statutes (HRS) §§ 587A-31 and 587A-32

(quoted infra), by failing to apply the "clear and convincing

evidence" standard; (3) in granting the Guardianship Petition;

and (4) in failing to make specific findings under HRS §§ 587A-31

and 587A-32 of "compelling reasons" why legal guardianship was in

KK's best interest. Mother also appears to challenge multiple

findings of fact (FOFs) and conclusions of law (COLs) in the

family court's April 26, 2022 Findings of Fact and Conclusions of

Law, entered in the CPA Case and the Guardianship Case. 

For the reasons discussed below, we vacate the CPA

Orders and the Guardianship Order, and remand to the family court

for further proceedings.

I. Background

Starting in November 2018, DHS received multiple calls

of concern regarding KK and her three brothers (Children) due to

domestic violence between Mother and Father2/ (Parents) and

substance abuse by both Parents. On February 12, 2019, DHS

confirmed the threat of abuse and neglect of the Children, who

were placed in protective custody under HRS § 587A-8. On

February 15, 2019, DHS filed a Petition for Temporary Foster

Custody (Petition), initiating the CPA Case. 

At the initial hearing for the CPA case, Parents

knowingly and voluntarily stipulated to the jurisdiction of the

family court, adjudication of the Petition, the award of foster

custody of the Children to DHS, and a service plan, which

included domestic violence education, a psychological evaluation,

a substance abuse assessment, random urinalysis, and parenting

education.

2/ Father does not appeal from the CPA Orders or the Guardianship

Order.

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Between August 2019 and January 2022, the family court

held periodic review and permanency hearings pursuant to HRS §§

587A-30 and -31 (quoted infra), to review Parents' progress in

services and their ability to provide a safe family home, to

review the safety and well-being of the Children, and to assess

case direction. Mother made enough progress with her services

that KK's three brothers were returned to Mother's care under

family supervision, on March 13, 2020, November 5, 2020, and

December 21, 2020, respectively.3/ Thereafter, family supervision

was automatically revoked as to the oldest brother when he turned

18, and following DHS's assessment that Mother was able to

provide a safe family home for the two younger brothers, the

family court revoked family supervision and terminated its

jurisdiction as to them. 

However, KK remained in foster care from her initial

removal in February 2019,4/ and has remained in the care of Uncle

for several years. KK has stated that she wishes to stay in

Uncle's home and does not want to live with Mother, because

Mother does not acknowledge her feelings and is unable to meet

her emotional needs.

It appears that from the first review/permanency

hearing in August 2019, DHS identified a "[c]oncurrent permanency

plan" of "reunification" and "legal guardianship" for KK.

Similarly, from at least August 2020, the family court's posthearing orders stated that "[t]he proper concurrent permanency

plan" was "reunification" and "legal guardianship" for KK. 

On November 16, 2021, DHS filed the Guardianship

Petition to have Uncle appointed as KK's legal guardian,

initiating FC-G No. 21-1-6285. Mother opposed the Guardianship

Petition and requested a trial. 

3/ Parents were involved in a domestic violence incident on

October 7, 2020, and have not lived together since that time.

4/ In each periodic review/permanency hearing, the family court

continued foster custody of KK, as reflected in the court's Orders Concerning

Child Protective Act, entered on August 8, 2019, August 4, 2020, October 29,

2020, January 28, 2021, April 16, 2021, July 9, 2021, October 11, 2021, and

January 11, 2022, and in the court minutes dated January 22, 2020.

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On February 1, 2022, in the CPA case, Mother filed the

Motion for Family Supervision to have KK returned to her care.5/

DHS and KK's court-appointed guardian ad litem (GAL) opposed

Mother's motion. 

On March 9 and 10, 2022, the family court held a

consolidated trial on the Motion for Family Supervision and the

Guardianship Petition. Following trial, the family court

determined that Mother was not presently willing and able to

provide KK with a safe family home, even with the assistance of a

service plan, and thus denied the Motion for Family Supervision. 

The court further determined that Mother was not able to exercise

her parental rights as to KK, and the appointment of Uncle as

KK's legal guardian was in her best interest. The court thus

appointed Uncle as KK's legal guardian pursuant to HRS § 560:5-

204(b).6/

II. Standards of Review

Generally, the family court possesses wide discretion

in making its decisions and those decisions 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.

In re R Children, 145 Hawai#i 477, 482, 454 P.3d 418, 423 (2019)

5/ HRS § 587A-4 (2018) defines "family supervision" as "the legal

status in which a child's legal custodian is willing and able, with the

assistance of a service plan, to provide the child with a safe family home." 

Under HRS § 587A-30(b)(1)(B) (2018), a child may be placed in family

supervision "if the court finds that the child's parents are willing and able

to provide the child with a safe family home with the assistance of a service

plan[.]" HRS § 587A-7(a) (2018) sets forth the factors the family court must

consider when deciding whether a child's parents are willing and able to

provide the child with a safe family home, with the assistance of a service

plan.

6/ HRS § 560:5-204(b) (2018) states:

(b) The court may appoint a guardian for a minor if

the court finds the appointment is in the minor's best

interest, and:

(1) The parents consent;

(2) All parental rights have been terminated; or

(3) The parents are unwilling or unable to exercise

their parental rights.

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(brackets omitted) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46,

137 P.3d 355, 360 (2006)).

"The family court's conclusions of law, on appeal, are

reviewed de novo under the right/wrong standard." Id. (citing In

re Jane Doe, 101 Hawai#i 220, 227, 65 P.3d 167, 174 (2003)). 

"Statutory interpretation is a question of law reviewable de

novo." Id. (quoting State v. Wheeler, 121 Hawai#i 383, 390, 219

P.3d 1170, 1177 (2009)).

III. Discussion

Mother contends that because the CPA case originated

and proceeded for more than three years under the CPA, the family

court was required to decide the Motion for Family Supervision

and the Guardianship Petition in accordance with the procedures

and standards set forth in HRS §§ 587A-317/ and 587A-32,8/ and the

7/ HRS § 587A-31 (2018) provides, in relevant part:

(d) At each permanency hearing, the court shall order:

(1) The child's reunification with a parent or parents;

(2) The child's continued placement in foster care, where:

(A) Reunification is expected to occur within a time

frame that is consistent with the developmental

needs of the child; and

(B) The safety and health of the child can be

adequately safeguarded; or

(3) A permanent plan with a goal of:

. . . .

(B) Placing the child for legal guardianship if the

department documents and presents to the court a

compelling reason why termination of parental

rights and adoption are not in the best

interests of the child[.]

8/ HRS § 587A-32 (2018) provides, in relevant part:

(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:

(continued...)

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court erred in failing to do so. Specifically, in her second and

third points of error, Mother argues that the family court was

required, but failed, to "determine by 'clear and convincing'

evidence that Mother[] is not able to provide [KK] with a safe

family home, even with the assistance of a service plan, and

there are compelling reason(s) why legal guardianship is in

[KK]'s best interest."9/ In her fourth point of error, Mother

argues that the family court was required, but failed, to make

specific findings under HRS §§ 587A-31 and 587A-32 of "compelling

reason(s) why legal guardianship was in [KK]'s best interest[.]" 

DHS, on the other hand, contends that HRS §§ 587A-2 and

587A-32 do not apply to "this case," and the family court

complied with HRS § 587A-31. Specifically, DHS argues that HRS

§ 587A-2, which references the clear and convincing evidence

standard (see supra note 9), does not apply because a

guardianship is not permanent, and under HRS § 560:5-204, the

termination of parental rights is not required to appoint a

guardian for a minor. Next, DHS argues that the family court

complied with HRS § 587A-31, as follows:

In a permanency hearing under HRS § 587A-31(d), the family

court must order only one of the following options "(1) The

child's reunification with a parent or parents; (2) The

child's continued placement in foster care where: (A)

Reunification is expected to occur within a time frame that

is consistent with the developmental needs of the child; and

(B) The safety and health of the child can be adequately

safeguarded[,]" or order a permanent plan as described in

HRS § 587A-32 with a permanency goal of adoption, legal

guardianship, or permanent custody.

Here, DHS asserts, the family court complied with HRS

§ 587A-31(d) at each of the periodic review/permanency hearings

"by continuing foster custody over KK while concurrently working

8/ (...continued)

(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[.]

9/ Mother also cites HRS § 587A-2 (2018) in support of her argument.

That section states, in relevant part, "Where the court has determined, by

clear and convincing evidence, that the child cannot be returned to a safe

family home, the child shall be permanently placed in a timely manner."

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with Mother to reunify with KK[,]" and thus "did not have the

option to order a permanent plan [under HRS § 587A-31(d)(3)] that

complied with the requirements of HRS § 587A-32." According to

DHS, although the court entered orders following each

review/permanency hearing that the "proper concurrent permanency

plan" was reunification and legal guardianship, the court did not

order a "permanent plan" under HRS § 587A-31(d)(3), and thus HRS

§ 587A-32 did not apply. 

While this matter did not involve a termination-ofparental-rights hearing, the supreme court's decision in R

Children, 145 Hawai#i 477, 454 P.3d 418, which addressed the

CPA's permanent plan requirement, is instructive. There, the

court addressed the interplay between two statutory provisions

that provide for the termination of parental rights — HRS § 587A33, a CPA provision, and HRS § 571-61(b)(1)(E), a family court

provision. Id. at 479, 454 P.3d at 420. The court held that a

father's parental rights could not be terminated based on the

family court provision, when the CPA provision contained a

requirement not present in the family court provision, i.e., that

the family court "find that the 'proposed permanent plan is in

the best interests of the child' before terminating a parent's

parental rights." Id. (quoting HRS § 587A-33(a)(3)). The court

explained: "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." Id. at 484, 454 P.3d at 425.

In reaching this conclusion, the court noted that the

CPA's permanent plan requirement "furthers the legislative intent

to serve the best interests of the child." Id. at 485, 454 P.3d

at 426. The court reasoned:

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.

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Comm. Rep. No. 236-86, in 1986 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.

. . . .

Moreover, the permanent plan requirement in the CPA

Provision adds an additional, specific criterion that we

cannot disregard. . . . 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.

Id. at 486, 454 P.3d at 427; see also id. at 487, 454 P.3d at 428

("The CPA envisioned the implementation of permanent plans to

bring safety and stability to the children within its

jurisdiction.")

Like R Children, the present matter involves the

interplay between seemingly similar statutory provisions

addressing children's needs, albeit provisions permitting the

placement of a child for legal guardianship without terminating

parental rights. Compare HRS §§ 587A-31(d)(3) (providing for a

permanent plan with a goal of placing the child for legal

guardianship) and -32 (stating the requirements for a permanent

plan) with HRS § 560:5-204(b)(1) and (3) (providing for

appointment of a guardian for a minor without terminating

parental rights). However, the relevant CPA provisions provide

for a specific permanent plan with a goal of "[p]lacing the child

for legal guardianship if the department documents and presents

to the court a compelling reason why termination of parental

rights and adoption are not in the best interests of the

child[,]" HRS § 587A-31(d)(3), as well as the other requirements

for a permanent plan, HRS § 587A-32. We conclude that these

specific CPA provisions controlled and should have been followed

in these cases, where the family court: (1) held proceedings,

including multiple permanency hearings, under the CPA for over

three years; (2) issued multiple post-hearing orders that

included legal guardianship as a permanency goal for KK; and (3)

ultimately denied KK's reunification with Mother, ended foster

custody over KK, and appointed Uncle as KK's legal guardian

without ordering a permanent plan that complied with HRS §§ 587A31(d)(3) and 587A-32. 

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DHS is correct that at a permanency hearing, when a

family court orders a child's continued placement in foster care

under HRS § 587A-31(2), it is not required to order a permanent

plan under § 587A-31(3). It does not follow, however, that

having repeatedly invoked the CPA's permanency planning

provisions,10/ the family court could then disregard the CPA's

permanent plan requirement, through a proceeding that substituted

the guardianship provisions of HRS § 560:5-204(b) for those of

HRS §§ 587A-31(d)(3) and 587A-32. The consolidated trial on the

Motion for Family Supervision and the Guardianship Petition also

functioned in substance as a permanency hearing, at which the

court effectively denied KK's reunification with Mother (by

denying the Motion for Family Supervision) and ended foster care

over KK. However, no permanent plan was prepared, considered or

ordered pursuant to HRS §§ 587A-31(d). The court instead relied

on the provisions of HRS § 560:5-204(b) to appoint Uncle as KK's

guardian. This substitution, where the applicable CPA provisions

contained a requirement not present in the guardianship

provisions of HRS § 560:5-204(b), was error. See R Children, 145

Hawai#i at 484, 454 P.3d at 425. Because this error infected the

family court's intertwined analysis of the Motion for Family

Supervision and the Guardianship Petition, the CPA Orders and the

Guardianship Order must be vacated. See id. at 487, 454 P.3d at

428. 

Given our decision, we do not reach Mother's remaining

points of error, including her summary challenge to the multiple

FOFs and COLs listed in her abbreviated opening brief.

IV. Conclusion

For the reasons discussed above, we vacate the

following orders entered in the Family Court of the First

10/ At a permanency hearing, the family court may find that legal

guardianship is an appropriate "permanency goal" for a child, HRS § 587A31(c)(5), and a permanent plan may state that the "permanency goal" for a

child will be achieved through legal guardianship, id. § 587A-32(a)(1). HRS

§ 587A-31(d)(3) makes clear that such a permanency goal can be placing the

child for legal guardianship without terminating parental rights. Here, in

fact, the family court issued multiple post-permanency hearing orders that

included legal guardianship as a permanency goal for KK.

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Circuit: (1) the March 10, 2022 Orders Concerning Child

Protective Act, entered in FC-S No. 19-00039; and (2) the March

18, 2022 Order Appointing a Guardian of a Minor, entered in FC-G

No. 21-1-6285. We remand these cases to the family court for

further proceedings consistent with this opinion.

DATED: Honolulu, Hawai#i, May 18, 2023.

On the briefs:

Randal I. Shintani,

for Mother-Appellee.

Kurt J. Shimamoto,

Julio C. Herrera,

Patrick A. Pascual, and

Regina Anne M. Shimada,

Deputies Attorney General,

for Petitioner-Appellee. 

Emily M. Hills, and

Mary Pascual

(Legal Aid Society of Hawaii)

for Guardian Ad Litem 

/s/ Katherine G. Leonard

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Derrick H.M. Chan

Associate Judge

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