SC v. JC. ( 2022 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-APR-2022
07:48 AM
Dkt. 63 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
–––O0O–––
SC, Petitioner, v.
JC, Respondent-Appellant
and
TG and AG, Intervenors-Appellees
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(UCCJEA NO. 20-1-6004)
APRIL 14, 2022
GINOZA, C.J., AND WADSWORTH AND McCULLEN, JJ.
OPINION OF THE COURT BY WADSWORTH, J.
Self-represented Respondent-Appellant JC (Father)
appeals from the "Order Re: [Father's] Motion & Declaration for
Post-Decree Relief Filed 2/25/20" (Order Denying Relief), entered
on September 18, 2020, in the Family Court of the First Circuit
(Family Court).1/ Father's February 25, 2020 Motion and
Declaration for Post-Decree Relief (Post-Decree Motion) sought
modification of a Colorado court's order granting self-
represented Intervenors-Appellees TG and AG's (Maternal
Grandparents) motion for visitation of their grandchildren, who
1/
The Honorable Elizabeth Paek-Harris presided.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
are the two minor children (Children) of Father and Petitioner SC
(Mother).2/ Following an August 28, 2020 evidentiary hearing,
the Family Court denied Father's Post-Decree Motion.
On appeal, Father contends that the Order Denying
Relief: (1) infringed upon Father's fundamental parental rights,
as protected by the due process clause of the Fourteenth
Amendment to the United States Constitution; (2) failed to uphold
"the special weight standard" imposed by Hawaii Revised Statutes
(HRS) § 571-46.3(2), quoted infra; and (3) violated HRS § 578-16,
quoted infra. Father also challenges Findings of Fact (FOFs)
135, 140 through 143, 145, 146, and 149 of the Family Court's
Findings of Fact and Conclusions of Law (FOFs/COLs), entered on
January 29, 2021.
In Doe v. Doe, 116 Hawai#i 323, 172 P.3d 1067 (2007),
the Hawai#i Supreme Court declared the state's grandparent
visitation statute, HRS § 571-46.3, quoted infra, facially
unconstitutional, because it did not include the "harm to the
child" standard required by the right to privacy under article I,
section 6 of the Hawai#i Constitution. Id. at 336, 172 P.3d at
1080. The court ruled that "proper recognition of parental
autonomy in child-rearing decisions requires that the party
petitioning for visitation demonstrate that the child will suffer
significant harm in the absence of visitation before the family
court may consider what degree of visitation is in the child's
best interests." Id. at 335–36, 172 P.3d at 1079–80.
We hold that Doe's harm-to-the-child standard applies
in the circumstances of this case, where Father, as a custodial
parent whose fitness has not been challenged, seeks to modify a
visitation order entered in favor of non-parent third parties,
i.e., Maternal Grandparents. We further hold that Maternal
Grandparents have satisfied the harm-to-the-child standard in the
unique circumstances of this case, where the Family Court entered
extensive findings of fact that the Children would suffer
significant harm if the visitation order were modified as
requested. The Family Court also correctly concluded that the
2/
Mother is now deceased, Father has remarried, and Father's wife
(Adoptive Mother) has adopted the Children.
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weight of the evidence on Maternal Grandparents' side was
sufficient to overcome the rebuttable presumption in favor of
Father's request to modify visitation. See Troxel v. Granville,
530 U.S. 57, 68-70 (2000) (plurality opinion).
Father's remaining arguments, to the extent not waived,
are without merit. Accordingly, we affirm the Order Denying
Relief.
I. Background
The following FOFs by the Family Court, among others,
are unchallenged on appeal and are thus binding on the parties
and this court, see State v. Rodrigues, 145 Hawai#i 487, 494, 454
P.3d 428, 435 (2019):
1. Father and [Mother] were married but separated
in 2011.
2. Father and Mother divorced pursuant to the
Decree of Dissolution of Marriage entered in the District
Court El Paso County, Colorado [(the Colorado Court)] on
January 14, 2016 ("Decree").
3. The parties have two (2) minor children . . .
(collectively "the children").
4. The Colorado Court entered the following
findings as set forth in the Decree:
. . . .
Mother will enjoy sole decision making, primary
residential responsibilities, or, in other words, sole
custody for [the children]. She may determine the
terms of parenting time between the children of the
marriage and their father.
5. Subsequently, Mother tragically died in a
traffic accident [in October] 2017.
. . . .
7. On March 6, 2018, Maternal Grandparents filed a
Motion for Grandparent Visitation in Colorado ("3/6/18
Motion for Grandparent Visitation").
. . . .
10. On October 3, 2018, the Colorado Court entered
its Order Re Motion for Grandparent Visitation ("10/3/18
Visitation Order").
11. The Colorado Court entered the following
findings in the 10/3/18 Visitation Order:
. . . .
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c. The Colorado Court must begin with the
presumption that the parent's determination of
grandparent visitation is in the best interest of the
children. That presumption is rebuttable with facts
and evidence which establish by clear and convincing
evidence that (a) the parent is unfit or (b) the
parent's determination of parenting time is not in the
best interest of the children.
d. There have been no allegations of
unfitness of Father. . . .
. . . .
f. Following the parents' separation [in
2011], Mother was the primary parent and exercised the
majority of the parenting time.
g. Mother was awarded sole decision-making
responsibility for the children, with parenting time
for Father as determined by Mother . . . .
. . . .
j. Father's parenting time was limited before
Mother's death [in October 2017].
k. Maternal Grandparents had been very
involved in the children's lives since between 2013
and 2017, and had the children two (2) to three (3)
days per week during the school year and five (5)
times per week during the summer.
1. Father was living in Ohio or Hawaii during
this period and had limited contact with the children.
. . . .
r. This is an unusual situation.
s. Mother is deceased, and the children are
presently with Father, who had limited contact with
them prior to Mother's death.
t. Maternal Grandparents have played a very
important role in the children's lives and provide an
essential link to the maternal side of the family.
u. The children are still grieving. Father
has placed the children in therapy and they are
improving. However, it doesn't follow that Maternal
Grandparents' contact with the children should be
limited.
v. Maternal Grandparents need to be an active
presence in the children's lives. They have always
been in the children's lives and they are a link to
the maternal side of the family. Contact with
Maternal Grandparents is necessary for the emotional
health of the children and to aid in the grieving
process.
. . . .
x. Father is providing stability for the
children and Maternal Grandparents are an essential
part of their emotional health.
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y. The Colorado Court finds that Maternal
Grandparents have met their burden by clear and
convincing evidence in that Father's determination of
grandparent visitation is not in the children's best
interests and that their request for grandparent
visitation is in the children's best interests.
. . . .
(Footnotes omitted.)
The Family Court concluded that the Colorado Court, in
entering the 10/3/18 Visitation Order, had considered and applied
the United States Supreme Court's decision in Troxel, 530 U.S.
57, as well as the relevant statutes and case law in Colorado,
"when it entered findings that the children would suffer
significant harm in the absence of visitation with Maternal
Grandparents before it considered what degree of visitation was
in the children's best interests." The Colorado Court granted
Maternal Grandparents the following grandparent visitation
schedule, subject to certain conditions and contingencies: one
week in the spring from March 17 to March 23 each year; one week
for Christmas from December 30 to January 5 each year; and two
weeks in the summer from July 1 to July 14 each year. Father was
to "deliver and receive the minor children from Maternal
Grandparents at the departure and arrival gates at the airport in
Hawaii." Maternal Grandparents were granted visitation "in
Hawaii unless Maternal Grandmother or Maternal Grandfather are
able to travel with the minor children to and from Colorado."
There is no evidence in the record that the 10/3/18
Visitation Order was ever appealed in Colorado. The Family Court
concluded that the 10/3/18 Visitation Order was a valid and
enforceable order.
On February 25, 2020, Father registered the 10/3/18
Visitation Order and other documents from the Colorado Court, in
the Family Court, pursuant to HRS § 583A-305. On the same day,
Father filed the Post-Decree Motion seeking to modify the 10/3/18
Visitation Order by restricting Maternal Grandparents' visitation
with the Children to "where the [C]hildren reside[,]" i.e.,
Hawai#i. Father asserted in the Post-Decree Motion that the
change in visitation was appropriate because: (a) "[t]he
[C]hildren have resided in the [S]tate of Hawaii for over 2
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years"; and (b) "[d]uring [the Children's] last visit with
[Maternal Grandparents, Maternal Grandparents] failed to return
the children in a timely manner pursuant to the court order
creating a lot of panic and confusion for the [C]hildren."
Father also requested that telephone visits between Maternal
Grandparents and the Children "be scheduled around the
[C]hildren[']s activities because it's become difficult for the
[C]hildren to comply during the court ordered hours and the
[C]hildren do not want to stay on the phone for a whole hour."
Further, Father contended that Hawai#i should have jurisdiction
in this matter because: (a) the Children have resided in Hawai#i
for over two years; (b) "[b]oth parents and all information
regarding [the Children's] care and well being exist here in
Hawaii"; and (c) Colorado is an inconvenient forum.
On April 28, 2020, the Colorado Court communicated with
the Family Court pursuant to HRS § 583A-110, as reflected in the
Family Court's "Record of Communication Between Courts," filed on
May 6, 2020. The Colorado Court stated that it believed that
Hawai#i has home state jurisdiction under the Uniform Child-
Custody Jurisdiction and Enforcement Act (UCCJEA), and that
Colorado no longer has continuing, exclusive jurisdiction, as no
party resides in Colorado. The Colorado Court informed the
Family Court that it was relinquishing jurisdiction to Hawai#i.
The Family Court stated that jurisdiction would be in Hawai#i
under the UCCJEA, but that the presiding judge would further
address the matter at the hearing.
On May 21, 2020, the Family Court held the first
hearing on Father's Post-Decree Motion. At the hearing, the
court found and ordered, among other things, that Hawai#i has
jurisdiction under the UCCJEA, and the hearing would be continued
to July 8, 2020, to allow the parties to mediate prior to
proceeding with the Post-Decree Motion.3/ Mediation was
unsuccessful and, at a July 8, 2020 hearing, the Family Court
3/
FOF 25 states that "Colorado no longer had continuing, exclusive
jurisdiction as none of the parties resided in the State of Colorado, Colorado
relinquished jurisdiction, Father asserted Hawaii had jurisdiction as he and
the [C]hildren resided in Hawaii, and Maternal Grandparents did not contest
Hawaii jurisdiction."
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ordered that the hearing be continued to August 28, 2020, for an
extended evidentiary hearing. The parties agreed to modify
Maternal Grandparents' telephone/video visits to: (a) telephone
visits every other Sunday starting July 12, 2020, from 3-4 p.m.,
and (b) video visits every other Sunday starting July 19, 2020,
from 3-4 p.m.
On August 28, 2020, the Family Court held the extended
evidentiary hearing on Father's Post-Decree Motion. Father,
Adoptive Mother, and a Hawai#i-licensed therapist testified on
behalf of Father. Two of Maternal Grandparents' Colorado family
members, as well as maternal grandmother TG, testified for
Maternal Grandparents. Multiple exhibits were received into
evidence.
On September 18, 2020, the Family Court entered the
Order Denying Relief, and on January 29, 2021, the Family Court
filed the FOFs/COLs. The FOFs stated in part:
40. Father's request does not constitute such a
change in circumstances that modification of the valid and
enforceable 10/3/18 Visitation Order is in the best
interests of the children.
41. At the time of the entry of the valid and
enforceable 10/3/18 Visitation Order, the children were
already residing in Hawaii.
42. The fact that the children lived in Hawaii
longer than they had at the time of the valid and
enforceable 10/3/18 Visitation Order is not a change in
circumstances such that modification of the valid and
enforceable 10/3/18 Visitation Order is in the children's
best interests.
43. As for Father's second basis for requesting
modification of the valid and enforceable 10/3/18 Visitation
Order in which he claims that during Maternal Grandparents'
last visit with the children in July 2019 they "failed to
return the children in a timely manner pursuant to the court
order creating a lot of panic and confusion for the
children" - this also does not constitute a change in
circumstances such that modifying their visits to be
exercised only in Hawaii or their residential area with
Maternal Grandparents would be in the children's best
interest.
. . . .
53. There was good cause for the delay in Maternal
Grandparents' untimely return of the children to Father in
Hawaii in July 2019.
54. During Maternal Grandparents' visit with the
children in July 2019 in Colorado, Maternal Grandmother
notified Father on July 13, 2019 that she may need to delay
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her flight with the children to return to Hawaii on July 14,
2019 due to an unexpected medical emergency where she was
admitted into the hospital with an acute diverticuli flare
up.
55. In the same email on July 13, 2019, Maternal
Grandmother also notified Father that (a) the children were
fine and at home with Maternal Grandfather, (b) she tried to
switch the flights so Maternal Grandfather could travel with
the children back to Hawaii instead of herself, but the
airlines would not allow her to transfer her ticket to
Maternal Grandfather, and (c) she should be released that
day but would need to wait a few days to be on oral
antibiotics before flying.
. . . .
58. Father unreasonably demanded that Maternal
Grandmother return the children as originally planned
without any justifiable reason.
. . . .
62. Maternal Grandmother returned the children to
Father in Hawaii on July 18, 2019.
. . . .
64. There was an unexpected, unintentional and
unforeseen change in circumstances that caused a slight four
(4) day delay in Maternal Grandparents' timely return of the
children to Father in July 2019.
65. Maternal Grandparents made their best effort to
return the children to Father as soon as practically
possible.
66. Notwithstanding, Father filed a complaint for
custodial interference with the Honolulu Police Department
("HPD") against Maternal Grandparents on July 14, 2019 that
was unwarranted and unnecessary.
. . . .
68. Father also contacted the local sheriff's
department in Colorado to enforce the valid and enforceable
10/3/18 Visitation Order, and requested the sheriffs in
Colorado to check on the children at Maternal Grandparents'
home, even though he received detailed notice from Maternal
Grandparents regarding the delay in the return of the
children to Father in Hawaii and that the children were
safe.
69. There was no reason for Father to believe that
the children were not safe.
70. The only plausible reason for Father to have
responded in the unreasonable manner that he did was to
create an unfair advantage for him to seek modification of
the valid and enforceable 10/3/18 Visitation Order, which he
had repeatedly been attempting to do unsuccessfully since
the Colorado Court entered it.
71. Father's actions subjected the children to
unnecessary harm and conflict by involving the sheriff's
department in Colorado.
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. . . .
114. Father is married to [Adoptive Mother].
115. [Adoptive Mother] legally adopted the children
on May 23, 2018.
. . . .
125. The Court did not find Father and [Adoptive
Mother's] testimony credible.
126. Maternal Grandparents are elderly and for them
to travel will become more difficult for them as they
continue to age.
127. The children are getting older and for them to
travel will become easier for them in the future.
128. The valid and enforceable 10/3/18 Visitation
Order states that when the children are older and Father
believes they can travel with an airline escort, they will
no longer need to travel with Maternal Grandparents.
129. Maternal Grandparents and Mother's family are
the only ties and connection the children have to their
Mother, now deceased, who was also once their primary
caretaker.
130. Maternal Grandparents had substantial and
emotional ties to the children throughout their life with
Mother until Father assumed custody after Mother passed away
three (3) years ago.
131. Maternal Grandparents' relationship with the
children goes beyond having a mere positive influence on
them.
132. The children will suffer significant harm in the
absence of visitation with Maternal Grandparents in
Colorado.
133. Colorado was the children's home where they
lived with Mother and were raised for most of their life
before they moved to Hawaii a few years ago.
134. Most of the children's extended family on
Mother's side, including one (1) of their half-siblings
reside in Colorado.
135. The children's other half-sibling lives in
Texas, but visits Colorado. Maternal Grandparents do not
have authority to travel to Hawaii with the children's
half-sibling who lives in Texas.
. . . .
138. Serious harm would result to the children given
Father's motivation to limit and restrict Maternal
Grandparents' visits with the children to Hawaii only.
139. The level of harm is of the magnitude that
justifies overruling Father's proposed request to modify the
valid and enforceable 10/3/18 Visitation Order restricting
the location of the visits to Hawaii.
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140. Father and [Adoptive Mother] are using the
children as pawns based on their own personal conflict and
resentment towards Mother's family in which the children
should not suffer as a result.
141. Father and [Adoptive Mother] are not acting out
of the best interests of the children, but instead, seek to
advance their own personal agenda by using the children
against Maternal Grandparents and attempting to restrict
their visits to Hawaii only.
142. Father and [Adoptive Mother] are attempting to
diminish the relationship between the children and Maternal
Grandparents as opposed to supporting and maintaining a
relationship between them.
143. There was a history of domestic violence in the
relationship between Mother, the children and Father in
which Father was the perpetrator.
. . . .
146. Father's history of domestic violence against
Mother and [younger daughter] has caused some of the tension
and conflict between Father and Maternal Grandparents.
147. The conflict escalated when [Adoptive Mother]
legally adopted the children, and injected herself in the
middle of communications between the children and Maternal
Grandparents.
148. Due to the growing conflict between Father,
[Adoptive Mother] and Maternal Grandparents, Father is
attempting to sever the children's ties with Maternal
Grandparents and Mother's family.
149. Father is not acting in the best interests of
the children in attempting to sever this critical
relationship . . . .
150. Given the strong and close relationship and bond
between Maternal Grandparents and the children, and Father's
motivation to sever ties between the children and Maternal
Grandparents due to the personal conflict between him,
[Adoptive Mother] and Maternal Grandparents, the overall
weight of the evidence on Maternal Grandparents' side is
sufficient to overcome any rebuttable presumption in favor
of Father's request to modify visitation.
151. There is clear and convincing evidence that
Maternal Grandparents are acting in the best interests of
the children.
152. There is clear and convening evidence that
modifying the valid and enforceable 10/3/18 Visitation Order
to limit Maternal Grandparents' visitation would be harmful
to the children.
153. It is in the best interests of the children to
enforce the provisions of the valid and enforceable 10/3/18
Visitation Order.
(Footnotes omitted.)
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II. Discussion
A. Father's Parental Rights
Father contends that the Family Court infringed upon
his fundamental parental rights, as protected by the due process
clause of the Fourteenth Amendment, "simply because [the Family
Court] believes a 'better' decision could be made." In this
regard, Father argues that FOFs 145 and 146 are not supported by
substantial evidence.
FOFs 143 through 146, as well as FOF 154a, concern
Father's history of domestic violence. The Family Court found
the following:
143. There was a history of domestic violence in the
relationship between Mother, the children and Father in
which Father was the perpetrator.
144. The children's grief counselor, Ms. Bagford,
states in her letter dated February 22, 2018 that she worked
with [younger daughter] weekly since August 2017 on "feeling
identification and regulation, psychoeducation around
domestic violence and safety as well as work around grief
and loss."
145. Further, in the parties' divorce case filed
earlier in FC-D No. 13-1-6897, prior to the parties filing
for divorce in Colorado, the Hawaii Family Court entered the
following findings in paragraph 1 of its "Order Denying
Plaintiff's Motion for Pre-Decree Relief Filed May 28, 2013
and Granting in Part and Denying in Part Defendant's Motion
for Pre-Decree Relief Filed July 12, 2013" [( August 30, 2013
Order)]:
Viewed from the standpoint of the best interests of
the children, the Court finds that an award of sole
physical custody of the minor children to MOTHER is in
the children's best interests. The Court awards each
of the parties joint legal custody of the minor
children. The children have resided with MOTHER in
Colorado since December, 2012; the Court finds that
MOTHER has been the primary caregiver for the children
over the majority of their lives. FATHER has failed
to rebut the Court's finding that he engaged in
domestic violence against MOTHER in January, 2013 and
therefore, an award of legal and physical custody to
MOTHER is appropriate (emphasis added).
146. Father's history of domestic violence against
Mother and [younger daughter] has caused some of the tension
and conflict between Father and Maternal Grandparents.
. . . .
154. In addition to all of the factors already noted
herein, the Court enters the following additional factors
considered in applying the best interests of the children
standard enumerated in HRS §571-46(b):
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a. As noted herein, there is a history of
domestic violence by Father and against Mother, where
one of the children, [younger daughter] was also
involved, which also included emotional abuse.
(Footnotes omitted.)
Findings of fact are reviewed under the clearly
erroneous standard and will not be overruled unless:
(1) the record lacks substantial evidence to support the
finding, or (2) despite substantial evidence in support of
the finding, the appellate court is nonetheless left with a
definite and firm conviction that a mistake had been made.
'Substantial evidence' is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.
LC v. MG, 143 Hawai#i 302, 310, 430 P.3d 400, 408 (2018) (quoting
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)).
We first note that Father does not challenge FOFs 143
144, and 154a, which are thus binding on this court. Rodrigues,
145 Hawai#i at 494, 454 P.3d at 435. Regarding FOFs 145 and 146,
Father asserts generally that "no substantial evidence . . .
verifies the claims of abuse; all accusations are unfounded and
clearly erroneous."
In FOF 145, the Family Court quotes from the August 30,
2013 Order entered by the Family Court in the parties' separate
divorce proceeding, which was initiated in Hawai#i in 2013 before
the filing of the divorce proceeding in Colorado.4/ The
August 30, 2013 Order was entered into evidence as Maternal
Grandparents' Exhibit 23 at the August 28, 2020 evidentiary
hearing. At that time, Father asserted that Exhibit 23 was
"irrelevant" and also stated, "I don't disagree that it's a court
order, but it wasn't due to domestic violence that it was filed .
. . ." There is no indication in the record, however, that
Father ever challenged the Family Court's domestic violence
finding by appealing from a final order in the Hawai#i divorce
proceeding. Nor does Father contend that FOF 145 misquotes the
August 30, 2013 Order. We thus conclude there is substantial
evidence to support FOF 145, and we are not left with a definite
and firm conviction that a mistake has been made.
4/
It appears that the Hawai#i divorce proceeding was dismissed in
2014.
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FOF 146 appears to be based on FOFs 143 through 145,
which concern Father's history of domestic violence, and FOFs 118
through 121, and 154bb and 154ii, which concern the conflict
between Father and Adoptive Mother on one side, and Maternal
Grandparents and Mother's family on the other. Father has not
challenged any of these FOFs supporting FOF 146, except for FOF
145, which we have concluded is not clearly erroneous. Based on
our review of the record, we conclude there is substantial
evidence to support FOF 146, and we are not left with a definite
and firm conviction that a mistake has been made.
Father also argues more generally that he has not been
found to be an "unfit" parent, and the Order Denying Relief
infringes on his fundamental parental right to make child-rearing
decisions.
The Hawai#i Supreme Court recently reiterated:
[A] parent's right to the "care, custody and control" of his
or her child is a fundamental liberty interest protected by
the United States Constitution. Troxel v. Granville, 530
U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)
("[T]he interest of parents in the care, custody, and
control of their children is perhaps the oldest of the
fundamental liberty interests recognized by this Court.").
This court has also recognized that independent of the
United States Constitution "parents have a substantive
liberty interest in the care, custody, and control of their
children protected by the due process clause of article 1,
section 5 of the Hawai#i Constitution. . . ." In re Doe, 99
Hawai#i 522, 533, 57 P.3d 447, 458 (2002).
DJ v. CJ, 147 Hawai#i 2, 17, 464 P.3d 790, 805 (2020) (quoting AC
v. AC, 134 Hawai#i 221, 233, 339 P.3d 719, 731 (2014)); see AA v.
BB, 139 Hawai#i 102, 109, 384 P.3d 878, 885 (2016).
In Troxel, the United States Supreme Court affirmed the
Washington Supreme Court's judgment that a Washington visitation
statute violated the United States Constitution. The plurality
opinion found that the Washington statute was "breathtakingly
broad" because its language effectively permitted "any third
party seeking visitation to subject any decision by a parent
concerning visitation of the parent's children to state-court
review." 530 U.S. at 67. The plurality also emphasized the
importance of the presumption "that fit parents act in the best
interest of their children[,]" and reasoned that the trial
court's visitation order contravened that presumption in part
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because it accorded no "special weight" to the parent's
determination of her children's best interests. Id. at 68-69.
The plurality further observed that the trial court's findings
demonstrated "nothing more that a simple disagreement between
[the trial court] and [the parent] concerning her children's best
interests." Id. at 72. However, neither the plurality opinion
nor the other five opinions in Troxel defined the scope of the
parental right with respect to visitation decisions. See AA, 139
Hawai#i at 109, 384 P.3d at 885 (construing Troxel).
In Doe, the Hawai#i Supreme Court considered the
constitutionality of HRS § 571-46.3,5/ which allowed for a
grandparent to petition for reasonable visitation of their
grandchild, and allowed the court to grant the petition so long
as Hawai#i was the child's home state and reasonable visitation
was in the child's best interests. 116 Hawai#i at 325, 172 P.3d
at 1069. Applying strict scrutiny, the supreme court concluded
that "proper recognition of parental autonomy in child-rearing
decisions requires that the party petitioning for visitation
demonstrate that the child will suffer significant harm in the
absence of visitation before the family court may consider what
degree of visitation is in the child's best interests." Id. at
335–36, 172 P.3d at 1079–80. The court held that HRS § 571-46.3
5/
HRS § 571-46.3 (2018) states:
Grandparents' visitation rights; petition; notice;
order. A grandparent or the grandparents of a minor child
may file a petition with the court for an order of
reasonable visitation rights. The court may award
reasonable visitation rights provided that the following
criteria are met:
(1) This State is the home state of the child at the
time of the commencement of the proceeding; and
(2) Reasonable visitation rights are in the best
interests of the child.
No hearing for an order of reasonable visitation rights
under this section shall be had unless each of the living
parents and the child's custodians shall have had due
notice, actual or constructive, of the allegations of the
petition and of the time and place of the hearing thereof.
An order made pursuant to this section shall be
enforceable by the court, and the court may issue other
orders to carry out these enforcement powers if in the best
interests of the child.
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was facially unconstitutional because it did not include the
"harm to the child" standard required by the right to privacy
under article I, section 6 of the Hawai#i Constitution. Id. at
336, 172 P.3d at 1080. "Thus, a parent's fundamental right to
direct the upbringing of his or her child was implicated 'where a
nonparent third party petitione[d] for visitation,' and the State
could not interfere with the parent's decision absent a finding
that the parent's decision to deny access to the child would
result in harm to the child." AA, 139 Hawai#i at 111, 384 P.3d
at 887 (construing Doe).
We hold that Doe's harm-to-the-child standard applies
in these circumstances, where Father, as a custodial parent whose
fitness has not been challenged, seeks to modify a visitation
order entered in favor of non-parent third parties, i.e.,
Maternal Grandparents. We further hold that Maternal
Grandparents have satisfied the harm-to-the-child standard in the
unique circumstances of this case, where the Family Court
entered extensive findings of fact that the Children would suffer
significant harm if the 10/3/18 Visitation Order were modified as
requested. The Family Court also concluded, in compliance with
the Troxel plurality, that the weight of the evidence on Maternal
Grandparents' side was sufficient to overcome the rebuttable
presumption in favor of Father's request to modify visitation.
The relevant FOFs include the following, none of which Father
challenges on appeal:
129. Maternal Grandparents and Mother's family are
the only ties and connection the children have to their
Mother, now deceased, who was also once their primary
caretaker.
130. Maternal Grandparents had substantial and
emotional ties to the children throughout their life with
Mother until Father assumed custody after Mother passed away
three (3) years ago.
131. Maternal Grandparents' relationship with the
children goes beyond having a mere positive influence on
them.
132. The children will suffer significant harm in the
absence of visitation with Maternal Grandparents in
Colorado.
133. Colorado was the children's home where they
lived with Mother and were raised for most of their life
before they moved to Hawaii a few years ago.
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134. Most of the children's extended family on
Mother's side, including one (1) of their half-siblings
reside in Colorado.
. . . .
138. Serious harm would result to the children given
Father's motivation to limit and restrict Maternal
Grandparents' visits with the children to Hawaii only.
(Emphasis added.)
These FOFs are binding on this court and support the
Family Court's mixed conclusions of fact and law in FOFs 139 and
150 that, respectively: (1) "[t]he level of harm is of the
magnitude that justifies overruling Father's proposed request to
modify the valid and enforceable 10/3/18 Visitation Order
restricting the location of the visits to Hawaii"; and (2) "the
overall weight of the evidence on Maternal Grandparents' side is
sufficient to overcome any rebuttable presumption in favor of
Father's request to modify visitation." Cf. Troxel, 530 U.S. at
72 (observing that the trial court's "slender findings"
demonstrated "nothing more than a simple disagreement between
[the trial court] and [the parent] concerning her children's best
interests").
After determining that the Children would suffer
significant harm if the 10/3/18 Visitation Order were modified as
requested, the Family Court then considered and applied the
factors enumerated in HRS § 571-46(b)6/ for determining the best
6/
HRS § 571-46(b) (2018) states:
(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;
(5) Each parent's cooperation in developing and
implementing a plan to meet the child's ongoing
needs, interests, and schedule; provided that
(continued...)
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interest of the child. See Doe, 116 Hawai#i at 335–36, 172 P.3d
at 1079–80. Father does not dispute any of the Family Court's
extensive findings on this subject, which support the court's
conclusions in FOFs 153 and 156 that, respectively, "[i]t is in
6/
(...continued)
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; 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;
(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 willful 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.
Such willful misuse may be considered only if it
is established by clear and convincing evidence,
and if it is further found by clear and
convincing evidence that in the particular
family circumstance the willful misuse tends to
show that, in the future, the parent who engaged
in the willful misuse will not be able to
cooperate successfully with the other parent in
their shared responsibilities for the child.
The court shall articulate findings of fact
whenever relying upon this factor as part of its
determination of the best interests of the
child. For the purposes of this section, when
taken alone, the voluntary dismissal of a
petition for protection from abuse shall not be
treated as prima facie evidence that a willful
misuse of the protection from abuse process has
occurred.
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the best interests of the children to enforce the provisions of
the valid and enforceable 10/3/18 Visitation Order[,]" and "[t]he
best interests of the children do not justify modification." The
Family Court also made clear in COLs 6 and 7 that it relied on
HRS § 571-46(a)(6) and (7)7/ and HRS § 571-46(b) in making its
visitation decision.8/ See Waldecker v. O'Scanlon, 137 Hawai#i
460, 375 P.3d 239 (2016) (cited by the Family Court in COL 11).
Accordingly, Father's argument that his parental rights
were violated is without merit.
B. Grandparent Visitation Statute
Father contends that the Family Court erred "by failing
to uphold the special weight standard specified in Paragraph 2 of
[HRS §] 571-46.3."
As discussed above, HRS § 571-46.3, the grandparent
visitation statute, was declared facially unconstitutional in
Doe. See 116 Hawai#i at 336, 172 P.3d at 1080. Even if HRS
§ 571-46.3 had not been held unconstitutional, the statute would
not have applied to Father's Motion for Post-Decree Relief, which
sought modification of the Colorado Court's 10/3/18 Visitation
7/
HRS § 571-46(a)(6) and (7) (2018) states, in relevant part:
(a) In actions . . . where there is at issue a
dispute as to the custody of a minor child, the court,
during the pendency of the action, . . . or any time during
the minority of the child, may make an order for the custody
of the minor child as may seem necessary or proper. In
awarding the custody, the court shall be guided by the
following standards, considerations, and procedures:
. . . .
(6) Any custody award shall be subject to
modification or change whenever the best
interests of the child require or justify the
modification or change and, wherever
practicable, the same person who made the
original order shall hear the motion or petition
for modification of the prior award;
(7) Reasonable visitation rights shall be awarded to
parents, grandparents, siblings, and any person
interested in the welfare of the child in the
discretion of the court, unless it is shown that
rights of visitation are detrimental to the best
interests of the child[.]
8/
Father does not challenge the validity of these provisions.
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Order, entered pursuant to Colorado law. The Family Court did
not err in not applying HRS § 571-46.3 to the Motion for Post-
Decree Relief. Moreover, we ruled in Section A, supra, that the
Family Court correctly concluded that the weight of the evidence
on Maternal Grandparents' side was sufficient to overcome the
rebuttable presumption in favor of Father's request to modify
visitation.
Father also argues that FOFs 135, 140 through 142, and
149 (see supra) are "outside the scope of evidence." FOF 135
states in part that one of the Children's half-siblings lives in
Texas. Maternal Grandmother testified that one of the Children's
half-siblings lives with Grandparents in Colorado and the other
half-sibling lives with his father in Colorado.9/ The record
lacks substantial evidence to support the finding that one of
Children's half-siblings lives in Texas, and that finding is thus
clearly erroneous. However, this minor error was harmless in
these circumstances and does not warrant relief. See, e.g.,
Dupree v. Hiraga, 121 Hawai#i 297, 320 n. 28, 219 P.3d 1084, 1107
n.28 (2009) (ruling that a clearly erroneous finding of fact was
harmless); DL v. CL, No. CAAP-XX-XXXXXXX, 2019 WL 968052 at *6
(Haw. App. Feb. 28, 2019) (SDO) (holding in a custody proceeding
that "[m]inor errors in a court's findings that are harmless do
not warrant relief").
FOFs 140 through 142 and 149 reflect the Family Court's
findings regarding Father and Adoptive Wife's motivations in
seeking to modify the 10/3/18 Visitation Order. These FOFs
appear to be based on numerous other unchallenged findings, e.g.,
FOFs 49-75 and 116-24, which describe instances of conflict
between Father and Adoptive Wife on one side, and Maternal
Grandparents and Mother's family on the other. See In re Doe,
107 Hawai#i 12, 19, 108 P.3d 966, 973 (2005) (explaining that
appellate courts give due deference to the right of the trier of
fact to draw reasonable inferences from the evidence adduced).
9/
In the same testimony, Maternal Grandmother stated that two weeks
earlier, the "El Paso County Courts" had awarded Grandparents additional
visitation with the latter child. In context, it appears that Maternal
Grandmother was referring to El Paso County, Colorado rather than El Paso
County, Texas.
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The Family Court also "did not find Father and [Adoptive
Mother's] testimony credible," a determination that we will not
disturb on appeal. See Fisher, 111 Hawai#i at 46, 137 P.3d at
360. Based on our review of the record, we conclude there was
credible evidence of sufficient quality and probative value to
enable a person of reasonable caution to support FOFs 140 through
142 and 149, and we are not left with a definite and firm
conviction that a mistake has been made.
C. Effect of Adoption
Father argues that as a result of the adoption of the
Children by Adoptive Mother, under HRS § 578-16,10/ Maternal
10/
HRS § 578-16 (2018) provides in part:
Effect of adoption. (a) A legally adopted individual
shall be considered to be a natural child of the whole blood
of the adopting parent or parents as provided in the Uniform
Probate Code, relating to the descent of property.
(b) The former legal parent or parents of an adopted
individual and any other former legal kindred shall not be
considered to be related to the individual as provided in
the Uniform Probate Code except as provided in this section.
(c) An adopted individual and the individual's
adopting parent or parents shall sustain towards each other
the legal relationship of parents and child and shall have
all the rights and be subject to all the duties of that
relationship . . . .
(d) Except as provided in subsection (e), all legal
duties and rights between the individual and the
individual's former legal parent or parents shall cease from
the time of the adoption; provided that if the individual is
adopted by a person married to a legal parent of the
individual, the full reciprocal rights and duties which
theretofore existed between the legal parent and the
individual, and the rights of inheritance as between the
individual and the legal parent and the legal relatives of
the parent, as provided in chapter 560, shall continue,
notwithstanding the adoption, subject only to the rights
acquired by and the duties imposed upon the adoptive parents
by reason of the adoption.
(e) Notwithstanding subsections (b) and (d), if an
individual is adopted before that individual attains the age
of majority and:
(1) The individual is adopted by a spouse of a
natural parent of the individual; or
(2) The individual is adopted by a natural
grandparent, aunt, uncle, or sibling of the
(continued...)
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Grandparents "no longer have any legal rights and duties" as to
the Children.
Father did not raise this argument in the Family Court.
"As a general rule, if a party does not raise an argument at
trial, that argument will be deemed to have been waived on
appeal; this rule applies in both criminal and civil cases."
County of Hawaii v. C & J Coupe Family Ltd., 119 Hawai#i 352,
373, 198 P.3d 615, 636 (2008) (quoting State v. Moses, 102
Hawai#i 449, 456, 77 P.3d 940, 947 (2003)); see Hawai#i Rules of
Appellate Procedure Rule 28(b)(4)(iii). Accordingly, Father's
argument is deemed waived.
III. Conclusion
For the reasons discussed above, we affirm the "Order
Re: [Father's] Motion and Declaration for Post-Decree Relief
Filed 2/25/20," entered on September 18, 2020, in the Family
Court of the First Circuit.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
JC,
Self-represented
Respondent-Appellant /s/ Clyde J. Wadsworth
Associate Judge
TG and AG,
Self-represented /s/ Sonja M.P. McCullen
Intervenors-Appellees Associate Judge
10/
(...continued)
individual or the spouse of a natural
grandparent, aunt, uncle, or sibling;
then for the purposes of interpretation or construction of a
disposition in any will, trust, or other lifetime
instrument, whether executed before or after the order of
adoption, and for purposes of determining heirs at law, the
rights of the adopted individual and the individual's
descendants with respect to the individual's natural family
shall not be affected by the adoption, and they shall be
included in any determination of heirs or members of any
class, unless specifically excluded by name or class.
. . . .
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