By the time she was 2, the child had lived most of her life with the same two Oahu foster parents.
The toddler had developed a strong bond with the couple and their family and considered their residence her home, according to court documents.
But because of a policy that eventually was struck down by the Hawaii Supreme Court, the Department of Human Services tried to get the child, who is identified in court documents only by the initials AS, removed from that home and placed with an aunt on Maui.
The policy gave priority to relatives in permanent placements of foster children.
The high court in February ruled that the DHS policy, in place since 2005, was not consistent with state and federal law. Known as the AS decision, it reaffirmed that what is in the best interest of the child must drive permanent placements, undermining one slice of the department’s aggressive push for family reunifications.
"The AS decision is important because it makes what is best for a foster child the only consideration after parental rights have been terminated," said attorney Frank O’Brien, who represented the child’s foster parents and took the case to the Supreme Court. "It makes the judge the final arbiter of what is in a child’s best interest. It makes clear that the DHS policy favoring placement with relatives without regard to what would be best for a child is inconsistent with (state law) and is not mandated by federal law, as DHS had claimed."
Attorney Lynne Youmans applauded the state Supreme Court’s decision, saying it would have a major impact on the lives of some of Hawaii’s most vulnerable children.
"Many children will find loving, supportive permanent family homes with biological relatives," she said. "Other children will find loving, supportive permanent family homes with nonrelatives who have become family to those children. All possibilities must be considered."
DHS Director Pat McManaman said agency workers received training on the AS decision and have been instructed to conform practices to the decision.
But in the nine months since the ruling was issued, O’Brien said he has detected no change by the department in its approach to permanent placements.
"They are not backing away from their position at all," he said, noting that DHS is willing to litigate when challenged on permanent placement decisions.
AS, meanwhile, is doing well, according to O’Brien. Now 6, she is in first grade, is taking swimming lessons and has bonded well with the rest of the family.
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The state of Hawaii has a policy of trying to return abused or neglected children with family members after problems have been addressed, a process known as reunification. In February, the state Supreme Court ruled that the policy of favoring family in permanent placements of foster children was inconsistent with state and federal law. While successful family reunifications promote stability in a child’s life and preserve important biological, cultural and other ties, some reunifications have ended in tragedy.
