[587A-15] Duties, rights, and liability of authorized agencies. (a) If an authorized agency has family supervision, it has the following duties and rights, subject to such conditions or restrictions as the court deems to be in the best interests of a child:

(1) Monitoring and supervising the child and the child's family members who are parties. Monitoring and supervision shall include reasonable access to each of the family members who are parties and reasonable access into the child's family home; and

(2) Placement of the child in foster care and thereby assuming temporary foster custody or foster custody of the child. The authorized agency shall immediately notify the court when such placement occurs. Upon notification, the court shall set the case for:

(A) A temporary foster custody hearing within three days, excluding Saturdays, Sundays, and holidays; or

(B) If jurisdiction has been established, a periodic review hearing within ten days of the child's placement.

The temporary foster custody hearing or the periodic review hearing may be held at a later date, only if the court finds it to be in the best interests of the child.

(b) If an authorized agency has foster custody it has the following duties and rights:

(1) Determining where and with whom the child shall be placed in foster care; provided that the child shall not be placed in foster care outside the State without prior order of the court;

(2) Permitting the child to return to the family from which the child was removed, unless otherwise ordered by the court. The child's return may occur only if no party objects to such placement and prior written notice is given to the court and to all parties stating that there is no objection of any party to the child's return. Upon the child's return to the family, temporary foster custody or foster custody shall be automatically revoked, and the child and the child's family members who are parties shall be placed under temporary family supervision or the family supervision of the authorized agency;

(3) Ensuring that the child is provided with adequate food, clothing, shelter, psychological care, physical care, medical care, supervision, and other necessities in a timely manner;

(4) Monitoring whether the child is being provided with an appropriate education;

(5) Providing required consents for the child's physical or psychological health or welfare, including ordinary medical, dental, psychiatric, psychological, educational, employment, recreational, or social needs;

(6) Providing consents for any other medical or psychological care or treatment, including surgery, if the persons who are otherwise authorized to provide consent are unable or unwilling to consent. Before being provided to the child, this care or treatment shall be deemed necessary for the child's physical or psychological health or welfare by two physicians or two psychologists, as appropriate, who are licensed or authorized to practice in the State;

(7) Providing consent for the child's application for a driver's instructional permit, provisional driver's license, or driver's license;

(8) Providing consent to the recording of a statement pursuant to section 587A-21; and

(9) Providing the court with information concerning the child.

The court, in its discretion, may vest foster custody of a child in any authorized agency or subsequently authorized agencies, if the court finds that it is in the child's best interests to do so. The rights and duties that are so assumed by an authorized agency shall supersede the rights and duties of any legal or permanent custodian of the child.

(c) Unless otherwise provided in this section or as otherwise ordered by the court, a child's family shall retain the following rights and responsibilities after a transfer of temporary foster custody or foster custody, to the extent that the family possessed the rights and responsibilities prior to the transfer of temporary foster custody or foster custody:

(1) The right of reasonable supervised or unsupervised visitation at the discretion of the authorized agency or the court;

(2) The right to consent to adoption, to marriage, or to major medical or psychological care or treatment; and

(3) The continuing responsibility to support the child, including repayment for the cost of any care, treatment, or other service provided by the authorized agency or the court for the child's benefit.

(d) If an authorized agency has permanent custody, it has the following duties and rights:

(1) Assuming the parental and custodial duties and rights of a legal custodian and family member;

(2) Determining 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;

(3) Ensuring that the child is provided with adequate food, clothing, shelter, psychological care, physical care, medical care, supervision, and other necessities in a timely manner;

(4) Monitoring whether the child is being provided with an appropriate education;

(5) Providing all required consents for the child's physical or psychological health or welfare, including medical, dental, psychiatric, psychological, educational, employment, recreational, and social needs;

(6) Providing consent for the child's application for a driver's instructional permit, provisional driver's license, or driver's license;

(7) Providing consent to adoption, change of name, and marriage; and

(8) Submitting a written report to the court if the child leaves the home of the permanent custodian for a period of seven consecutive days or more. The report shall state the child's current situation and shall be submitted on or before the tenth day, excluding Saturdays, Sundays, and holidays, after the child leaves the home.

(e) An authorized agency shall not be liable to third party persons for the acts of the child solely by reason of the agency's status as foster custodian or permanent custodian of the child. [L 2010, c 135, pt of 1]

 

Case Notes

 

The department of human services has the discretion to make permanent placement decisions, subject to review by the family court, which is authorized and required by law to determine whether the placement is in the child's best interests. 132 H. 368, 322 P.3d 263 (2014).

The family court is not required to relieve the department of human services (DHS) of its permanent custodianship over a child if the family court disagrees with DHS' permanent placement decision. 132 H. 368, 322 P.3d 263 (2014).

The party challenging the department of human services' (DHS) permanent placement determination bears the burden of proving, by a preponderance of the evidence, that DHS' permanent placement determination is not in the best interests of the child. 132 H. 368, 322 P.3d 263 (2014).

Department of human services does not have the discretion to determine a child's permanent placement pursuant to, inter alia, subsection (d)(2); subsection (d)(2) characterizes the department's permanent placement authority as a "duty" and "right", but nowhere suggests that the department may exercise that authority in its discretion. 130 H. 486 (App.), 312 P.3d 1193 (2013).

Family court did not err, as a matter of law, by denying department of human services' request to be discharged as the child in question's permanent custodian, after ordering the department not to place the child with the child's maternal aunt; the Hawaii supreme court has never held that where the family court rejects a department of human services placement recommendation, the supreme court should revoke the department's custody. 130 H. 486 (App.), 312 P.3d 1193 (2013).

 

 

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