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

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

IN THE INTEREST OF ASK 

SCWC-21-0000285 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-21-0000285; 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 

Electronically Filed

Supreme Court

SCWC-21-0000285

27-DEC-2022

09:06 AM

Dkt. 14 OPA
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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. 
 3

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, 60 P.3d 285, 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, 322 

P.3d 263, 273 (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 
4

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.
 5

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 factors2 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;
 6

“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.) 
 7

the Interest of Hannah L., 390 P.3d 1153, 1159 (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.
8

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.”
9

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).
 10

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 factfinder – 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, 458 P.3d 21, 25 (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, 322 P.3d at 273 

(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, 454 P.3d 439, 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. Id. 

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, 137 P.3d 355, 360 (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

(Brett A. Ritter on the briefs) 

for petitioner 

Patrick A. Pascual and 

Julio C. Herrera 

(Ian T. Tsuda and Regina Anne 

Mormad Shimada on the briefs) 

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama 

/s/ Sabrina S. McKenna 

/s/ Michael D. Wilson 

/s/ Todd W. Eddins