(Amended 8/15/13)

No. SCWC-11-0001065,Thursday, October 24, 2013, 12:00 p.m.

In the Interest of A S.

 The above-captioned case has been set for argument on the merits at:

Ronald T.Y. Moon Kapolei Court House
Courtroom 1
4675 Kapolei Parkway
Kapolei, HI 96707

Attorneys for Petitioner/Petitioner-Appellant:

Patrick A. Pascual, Mary Anne Magnier, and Jay K. Goss, Deputy Attorneys General

Attorney for Respondents/Respondents-Appellees Foster Parents:

Francis T. O’Brien

 Attorney for Respondent/Appellee-Appellee Volunteer Guardians Ad Litem Program:

Kimberly S. Towler

NOTE: Order accepting Application for Writ of Certiorari, filed 07/25/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Petitioner-Appellant State of Hawai`i, Department of Human Services (“DHS”) timely filed an application for writ of certiorari seeking review of the ICA’s April 30, 2013 Judgment on Appeal, entered pursuant to its March 28, 2013 Opinion, which affirmed the Family Court of the First Circuit’s (“family court”) Order Re: Trial on Placement entered on November 18, 2011. The issue before the court involved a dispute as to whether A.S., a minor, should maintain her placement with Foster Parents, with whom A.S. had lived for most of her life, or be moved to placement with Maternal Aunt on Maui. DHS, which had a policy in favor of kin placements, determined that it was in A.S.’s best interests to be placed permanently with Maternal Aunt. Maternal Aunt agreed with DHS. Foster Parents and the Voluntary Guardian Ad Litem (“VGAL”) Program disagreed, and sought a court order prohibiting DHS from removing A.S from her current placement and making Foster Parents her permanent placement. The family court concluded that it was not in the best interests of A.S. to remove her from placement with Foster Parents for placement with Maternal Aunt, and that DHS abused its discretion in deciding otherwise. DHS appealed and the ICA affirmed.

On certiorari, DHS presents four questions:

1. In ruling that DHS, as the permanent custodian of a child, did not have the discretion to determine a child’s placement, did the ICA commit grave errors of law by:

a) Disregarding (and overturning) the Hawaii Supreme Court’s ruling in In re Doe, 100 Haw. 335, 346 & FN 19, 60 P.3d 285, 296 & FN 19 (2002) that held when DHS is appointed the permanent custodian of a child, DHS has the discretion to determine the child’s permanent placement?

b) Violating the rules of statutory interpretation when it erroneously held that while HRS § 587A-15(d)(2) gave DHS, as a child’s permanent custodian, the duty and authority to determine a child’s placement, DHS had no discretion because of the absence of the word “discretion?” Does the ICA’s holding create absurd results, such as making the Judiciary, instead of DHS, the primary child-placing agency when children are placed in temporary foster, foster and permanent custody, notwithstanding contrary statutory language and legislative intent?

2. Did the ICA commit grave errors of law in ruling that the standard and burden of the family court’s review of DHS’s permanent placement decision was in the child’s best interest, instead of placing the burden on the person challenging DHS’ placement decision to prove that DHS abused its discretion in making its assessment? Was the ICA’s ruling also inconsistent with the Supreme Court’s ruling in In re Doe, 101 Haw. 220, 231, 65 P.3d 167, 178 (2003)?

3. Did the ICA commit grave errors of law in ruling that Federal and Hawaii law did not create relative/family placement preferences for children in foster care, including those in the permanent custody of DHS?

4. Did the ICA commit grave errors of law by ruling that the family court was not required to remove DHS as the child’s permanent custodian after ruling that DHS abused its placement discretion?