NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
NO. 27637
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
IN THE INTEREST OF A.G.
Stepfather appeals from the (1) September 30, 2005 (a) Order Awarding Permanent Custody and (b) Letters of Permanent Custody, and (2) November 3, 2005 Orders Concerning Child Protective Act entered in the Family Court of the First Circuit. We affirm.
BACKGROUND
On January 2, 2003, A.G. was taken into protective custody by the police. The State of Hawai`i Department of Human Services (DHS) commenced this Hawaii Revised Statutes (HRS) Chapter 587 Child Protective Act case on January 7, 2003. Two days later, the court entered a stipulated order awarding DHS foster custody of A.G.
On November 5, 2004, DHS filed a Motion for Order Awarding Permanent Custody and Establishing a Permanent Plan. More than ten months later, on September 29 and 30, 2005, Judge William K. Wallace, III. presided over a trial. On September 30, 2005, Judge Wallace entered Orders Concerning Child Protective Act stating in part: C
DHS orally moved to dismiss Stepfather as a party, subject to recall if
further reunification efforts were ordered after the trial on the
Motion for
Permanent Custody;
E
The court finds that Stepfather's
past participation in the permanent plan and related proceedings has
contributed to the delay in the
disposition
of the DHS Motion for Permanent Custody filed November 5, 2004, and the
court will exercise its discretion in favor of the
DHS request for
dismissal;
On September 30, 2005, Judge Wallace entered the Order Awarding Permanent Custody (1) which terminated Mother's parental and custodial duties and rights with respect to A.G. and ordered a permanent plan into effect.
On October 13, 2005, Stepfather filed a motion for reconsideration. This motion was denied by the November 3, 2005 Orders Concerning Child Protective Act.
On December 5, 2005, Stepfather filed a notice of appeal. On December 28, 2005, Judge Wallace entered Findings of Fact and Conclusions of Law (FsOF and CsOL). The FsOF state in part:
20. At the outset of the
September 29, 2005 proceedings, the court granted the DHS oral motion
to dismiss Stepfather as a party,
subject to recall if
further reunification efforts were ordered after trial, because he has
[sic] is neither the legal nor natural father of
the child and is
therefore not a
necessary party . . . to the contested permanent plan hearing, and
because Stepfather's past
participation in the
proceedings contributed to the delay
in the disposition of the DHS Motion for Order Awarding Permanent
Custody and
Establishing a Permanent Plan, filed November 5, 2004.
25. On September 30, 2005, testimony was received from Stepfather . . . , Mother . . . , and the GAL, . . . .
29. Stepfather filed a
timely Motion for Reconsideration of the September 29 and 30, 2005
orders on October 13, 2005, which did not
offer any new
evidence or argument.
In his opening brief, Stepfather contends:
Never did CPS or the Family Court address Stepfather's rights under the Local Paternal doctrine and the removal of those rights. The Loco Paternal doctrine gave Stepfather parental rights and this court did nothing to remove them. QUESTION? Does Stepfather still have parental rights with the child [A.G.]?
(Quoted as appears in original.)DISCUSSION
The Hawai`i Supreme Court has stated:
Hawaii's statutory scheme facilitating the termination of parental rights [i.e., Part VI of HRS chapter 571] initially takes parents' rights and interests into account before turning to the child's. In the case of involuntary termination, it is only after the parents have demonstrated some form of "unfitness" as defined by the legislature in HRS § 571-61(b) that the state intervenes as parens patriae and considers the best interests of the child. The statute thus gives proper regard to the rights of parents before allowing termination, consistent with due process principles.
Woodruff v. Keale, 64 Haw. 85, 99, 637 P.2d 760, 769 (1981).This court has stated:
A child's stepparent is not the child's parent. A child's stepparent who has not been lawfully appointed as the guardian of the child's person by the family court pursuant to HRS § 551-1 (1985) is not the child's guardian. The status of being a child's stepparent does not confer any legal rights upon the stepparent with respect to the child. HRS § 577-4 (1985) requires a stepparent to support the stepparent's stepchild only when: (1) the child resides with the stepparent; (2) the legal parents desert the child or are unable to support the child, thereby reducing the child to destitute and necessitous circumstances; and (3) the stepparent acts in loco parentis to the child. Stepparents have no rights with respect to the involuntary termination of parental rights, HRS § 571-61(b) (1985), or adoptions. HRS § 578-2 (Supp.1992).
State v. Alagao, 77 Hawai`i 260, 263, 883 P.2d 682, 685 (App. 1994).Although a stepparent has no parental rights, a stepparent has various statutory rights and obligations to be involved in court proceedings pertaining to his or her stepchild depending on the subject of the court proceedings. (2)
HRS § 587-32(a) requires the court, after a Child Protective Act petition has been filed, to "issue a summons requiring a child's family member or members who have legal or physical custody of the child at the time of the filing of the petition to bring the child before the court at the temporary foster custody hearing or on the return date set forth in the summons." HRS § 587-2 includes within its definition of "Party" (1) "the child's family member or members who are required to be summoned pursuant to section 587-32(a)" and (2) "any other person who is alleged in the petition filed under this chapter or who is subsequently determined at any child protective proceeding to be encouraging, causing, or contributing to the acts or conditions which bring the child within this chapter, and who has been duly served with a summons and a copy of the petition filed under this chapter[.]" The HRS § 587-2 definitial of "Party" also provides that "the court may limit a party's right to participate in any child protective proceeding if the court deems such limitation of such party's participation to be consistent with the best interests of the child and such party is not a family member who is required to be summoned pursuant to section 587-32(a)[.]"
Is Stepfather "a family member who is required to be summoned pursuant to section 587-32(a)?" The answer is no. Is the factual basis of FOF no. 20, which was entered on December 28, 2005, clearly erroneous? The answer is no. Did the family court abuse its discretion when it terminated Stepfather's status as a party in the case? The answer is no.
CONCLUSION
Accordingly, we affirm (1) the September 30, 2005 (a) Order Awarding Permanent Custody and (b) Letters of Permanent Custody, and (2) the November 3, 2005 Orders Concerning Child Protective Act.
DATED: Honolulu, Hawai`i, March 12, 2007.
1. On October 23, 2006, in Mother's appeal, No. 27618, this court affirmed the September 30, 2005 Order Awarding Permanent Custody.
2.
The Hawaii Revised Statutes and the subjects of the court proceedings
are numerous.
(2) A legal father as to whom the child is a legitimate child;
(3) An adjudicated father whose relationship to the child has been determined by a court;
(4) A presumed father under section 578-2(d);
(5) A concerned natural
father who is not the legal, adjudicated, or presumed father but who
has demonstrated a reasonable
degree of interest, concern
or responsibility as to the welfare of
a child, . . . .
. . . .
. . . .(2) Persons whose consent
may be dispensed with by order of the court. The court may dispense
with the consent of a parent
who comes within
subsection (a)(3), (4), or (5) herein, upon
finding that:
(A) The petitioner is the
stepfather of the child and the child has lived with the child's legal
mother and the petitioning
stepfather for a
period of at least one year[.]
HRS Chapter 584 is Hawaii's Uniform Parentage Act.
[§ 584-1] Parent and child relationship defined. As used in this chapter, "parent and child relationship" includes the legal relationship existing between a child and the child's natural mother, between a child and father whose relationship as parent and child is established under this chapter, or between a child and the child's adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations.
HRS Chapter 587 is Hawaii's Child Protective
Act.
§ 587-2 Definitions. When used in this chapter, unless the context otherwise requires:
. . . ."Family" means each legal parent, the natural mother, the natural father, the adjudicated, presumed, or concerned natural father as defined under section 578-2, each parent's spouse, or former spouses, each sibling or person related by consanguinity or marriage, each person residing in the same dwelling unit, and any other person who or legal entity which is a child's legal or physical custodian or guardian, or who is otherwise responsible for the child's care, other than an authorized agency which assumes such a legal status or relationship with the child under this chapter.
"Family home" means the home of the child's legal custodian where there is the provision of care for the child's physical and psychological health and welfare."Party" means an authorized agency, the child, the child's family member or members who are required to be summoned pursuant to section 587-32(a), any other member of the child's family, or any other person who is alleged in the petition filed under this chapter or who is subsequently determined at any child protective proceeding to be encouraging, causing, or contributing to the acts or conditions which bring the child within this chapter, and who has been duly served with a summons and a copy of the petition filed under this chapter; provided that the court may limit a party's right to participate in any child protective proceeding if the court deems such limitation of such party's participation to be consistent with the best interests of the child and such party is not a family member who is required to be summoned pursuant to section 587-32(a), except as is provided in section 587-73(b)(4).
(1) Permanent custody
divests from each legal
custodian and family member who has been summoned pursuant to section
587-32(a), and vests in a
permanent custodian, each of the
parental and custodial duties and rights of a legal custodian and
family member, including,
but not limited to, the following:
(A) To determine where and
with whom the
child shall live; provided that the child shall not be placed outside
the State
without prior
order of the court;
. . . .
(E) To provide consent to adoption, change of name pursuant to section 574-5, or to marriage;
. . . .
(2) Unless otherwise
ordered by the court, a
child's family member shall retain, to the extent that the family
member possessed
the responsibility
prior to the transfer of permanent
custody,
the continuing responsibility for support of the child,
including, but
not limited to, repayment for the cost of any and all care, treatment,
or any other service supplied or provided
by the
permanent custodian, any subsequent permanent custodian, other
authorized agency, or the court for the child's
benefit;
(3) A family member may be
permitted
visitation with the child at the discretion of the permanent custodian;
provided that the
exercise of such discretion
may be reviewed by the
court and
the court may order that a family member be permitted such
visitation
as is in the best interests of the child;
(4) An order of permanent
custody entered
under this chapter shall not operate to terminate the mutual rights of
inheritance of
the child and the
child's family members or any other
benefit
to which the child may be entitled, unless and until the child
has been
legally adopted;
(5) The court, in its
discretion, may vest
permanent custody of a child in an authorized agency or in subsequent
authorized
agencies as is deemed to be
in the best interests of the
child[.]
(b) A certified copy of the petition shall be attached to each summons.
(c) The summons shall notify the parties of their right to retain and be represented by counsel.(d) The summons shall state: "YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS CONCERNING THE CHILD OR CHILDREN WHO ARE THE SUBJECT OF THE ATTACHED PETITION MAY BE TERMINATED BY AWARD OF PERMANENT CUSTODY IF YOU FAIL TO APPEAR ON THE DATE SET FORTH IN THIS SUMMONS."
§ 587-72 Review hearings. (a) Except for good cause shown, the court shall set each case for review hearing not later than six months after the date that a service plan is ordered by the court and, thereafter, the court shall set subsequent review hearings at intervals of no longer than six months until the court's jurisdiction has been terminated or the court has ordered a permanent plan and has set the case for a permanent plan review hearing; the court may set a case for a review hearing upon the motion of a party at any time if the hearing is deemed by the court to be in the best interests of the child.(b) Notice of review hearings shall be served upon the parties and upon the present foster parent or parents, each of whom shall be entitled to participate in the proceedings as a party. Notice of the review hearing shall be served by the department upon the present foster parent or parents no less than forty-eight hours before the scheduled hearing. No hearing shall be held until the foster parent or parents are served. For purposes of this subsection, notice to foster parents may be effected by hand delivery or by regular mail; and may consist of the last court order, if it includes the date and time of the hearing.
(c) Upon each review hearing the court shall consider fully all relevant prior and current information pertaining to the safe family home guidelines, as set forth in section 587-25, including but not limited to the report submitted pursuant to section 587-40, and:
(1) Determine whether the
child's family is
presently willing and able to provide the child with a safe family home
without the
assistance of a service plan and, if so, the court shall
terminate jurisdiction;
(2) Determine whether the
child's family is
presently willing and able to provide the child with a safe family home
with
the assistance of a
service plan and, if so, the court shall
return the
child or continue the placement of the child in
the child's family
home
under the family supervision of the appropriate authorized agency;
(3) If the child's family
home is determined,
pursuant to subsection (c)(2) not to be safe, even with the assistance
of a
service plan, order
that the child remain or be placed under the
foster
custody of the appropriate authorized agency;
(4) Determine whether the
parties have
complied with, performed, and completed every term and condition of the
service
plan that was
previously court ordered;
(5) Order revisions to the
existing service
plan, after satisfying section 587-71(h), as the court, upon a hearing
that the
court deems to be
appropriate, determines to be in the best
interests
of the child; provided that a copy of the revised
service plan shall be
incorporated as part of the order[.]
(1) The child's legal
mother, legal father,
adjudicated, presumed, or concerned natural father as defined under
chapter 578 are not
presently willing and able
to provide the child
with a safe
family home, even with the assistance of a service plan;
(2) It is not reasonably
foreseeable that the
child's legal mother, legal father, adjudicated, presumed, or concerned
natural father
as defined under
chapter 578 will become willing and
able
to provide the child with a safe family home, even with the
assistance
of a service plan, within a reasonable period of time which shall not
exceed two years from the date upon which
the
child was first placed under foster custody by the court;
(3) The proposed permanent
plan will assist
in achieving the goal which is in the best interests of the child;
provided that the
court shall presume
that:
(A) It is in the best
interests of a child to
be promptly and permanently placed with responsible and competent
substitute
parents and families in safe and secure homes; and
(B) The presumption
increases in importance
proportionate to the youth of the child upon the date that the child
was
first placed under
foster custody by the court; and
(4) If the child has
reached the age of
fourteen, the child consents to the permanent plan, unless the court,
after consulting with (1) That the existing
service plan be
terminated and that the prior award of foster custody be revoked; (2) That permanent custody
be awarded to an
appropriate authorized agency; (3) That an appropriate
permanent plan be
implemented concerning the child whereby the child will:
the child in camera,
finds that it is in the best
interest of the
child to dispense with the child's consent.
(A) Be adopted pursuant to
chapter 578;
provided that the court shall presume that it is in the best interests
of the child
to be adopted,
unless the child is or will be in the home
of family or
a person who has become as family and who for
good cause is
unwilling
or unable to adopt the child but is committed to and is capable of
being the child's guardian
or permanent
custodian;
(B) Be placed under guardianship pursuant to chapter 560; or
(C) Remain in permanent
custody until the
child is subsequently adopted, placed under a guardianship, or reaches
the
age of majority, and
that such status shall not be subject to
modification or revocation except upon a showing of
extraordinary
circumstances to the court;
(c) If the court determines that the criteria set forth in subsection (a) are not established by clear and convincing evidence, the court shall order that:
(A) Revoke the prior award of foster custody to the authorized agency and return the child to the family home;
(B) Terminate jurisdiction;
(C) Award family supervision to an authorized agency;
(D) Order such revisions
to the existing
service plan as the court, upon such hearing as the court deems to be
appropriate and after
ensuring that the requirement of section
587-71(h) is
satisfied, determines to be in the best
interests of the
child;
provided that a copy of the revised service plan shall be incorporated
as part of the order;
(E) Set the case for a review hearing within six months; and
(F) Enter such further orders as the court deems to be in the best interests of the child.