In re: Adoption of A ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-DEC-2021
07:51 AM
Dkt. 153 MO
NO. CAAP-XX-XXXXXXX
(Consolidated with CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
IN THE MATTER OF ADOPTION OF A
MALE CHILD BORN ON NOVEMBER 5, 2013
(FC-A NO. 18-1-005K)
AND
CAAP-XX-XXXXXXX
IN THE MATTER OF ADOPTION OF A
MALE CHILD BORN ON NOVEMBER 5, 2013
(FC-A NO. 18-1-019K)
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
This case involves competing petitions for the adoption
of a child filed by the child's grandmother and by the child's
foster parents. In this consolidated appeal,1 Petitioner-
1
The first appeal, CAAP-XX-XXXXXXX, arises from the December 30,
2019 denial of Grandmother's Petition for Adoption, In the Matter of Adoption
of a Male Child Born on November 5, 2013, filed in FC-A No. 18-1-005K
(continued...)
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Appellant DG (Grandmother) appeals from the December 30, 2019
Findings of Fact, Conclusions of Law, Decision and Order
(Decision and Order), and February 27, 2020 Adoption Decree
(Adoption Decree), in favor of Appellees-Resource Caregivers
(Caregivers) KM and JW, filed in the Family Court of the Third
Circuit (Family Court).2 Appellee-State of Hawai#i Department of
Human Services (DHS) recommended adoption of the minor male child
(Child) by Caregivers, and withheld its consent to Grandmother's
petition.
On appeal, Grandmother contends the Family Court erred:
(1) by exceeding its subject matter jurisdiction in finding that
the DHS acted reasonably in failing to place Child with
Grandmother in 2016 (Findings of Fact (FOF) 163 and Conclusions
of Law (COL) 15, 17, 31);3 (2) by allowing improper ex parte
communications in the separate FC-S child welfare case (FC-S
case)4 without notice to Grandmother; (3) by applying judicial
estoppel to Grandmother's objections to the testimony and
recommendations of the Family Court's custody evaluator, Dr.
Robert Simon (Dr. Simon) (COLs 3, 4, 5); (4) by accepting Dr.
1
(...continued)
(Grandmother's petition). The second appeal, CAAP-XX-XXXXXXX, arises from the
December 30, 2019 granting of the DHS's "Petition for Adoption Pursuant to
Chapter 587A, Hawaii Revised Statutes [(HRS)]of a Male Child Born on November
5, 2013 by [Caregivers]" filed in FC-A No. 18-1-019K (DHS petition). Both
petitions were consolidated for trial although no formal order was entered.
This court granted consolidation by order filed March 11, 2020, and the
appeals were consolidated under CAAP-XX-XXXXXXX.
2
The Honorable Mahilani E.K. Hiatt presided.
3
While FOF 163 deals with the DHS's 2016 placement decision, COLs
15, 17, and 31 deal with the DHS's 2018 consent decisions in these competing
adoption petitions filed in 2018. Grandmother provides argument as to FOF
163, but none as to COLs 15, 17, and 31 on subject matter jurisdiction
grounds. We do not address Grandmother's challenge to COLs 15, 17, and 31 on
this ground. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(7)
("Points not argued may be deemed waived."). COL 15, however, is separately
raised and argued in Grandmother's sixth point of error, and we address it
infra.
4
The FC-S case is described infra.
2
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Simon's findings while rejecting the findings of Grandmother's
experts -- Drs. Jonathan Gould (Dr. Gould), Kim Norman (Dr.
Norman), and Mark Burdick (Dr. Burdick) (FOF 256, COL 7); (5) by
denying Grandmother's petition despite its findings and
conclusions that Grandmother satisfied the HRS § 578-8 adoption
requirements (COLs 13, 14, 15, 24, and 25); (6) by concluding
that the DHS reasonably withheld consent to Grandmother's
petition despite evidence that HRS § 578-8 (2018) was satisfied
(COL 15); (7) in its analysis of the mandatory HRS § 578-8
factors and the "discretionary" HRS § 571-46 (2018) best interest
factors and challenging "contradict[ory]" FOFs and COLs (COLs 3,
4, 10, 19, 26(b)(9), 27, 28, and 33); and (8) by entering
erroneous, inconsistent, and unsupported findings and conclusions
(FOFs 33, 256, COLs 10 and 26(b)(9)), and by omitting findings
and conclusions establishing that Grandmother's adoption of Child
would be in Child's best interests.
We hold that the Family Court's ruling, that
Grandmother was judicially estopped from challenging Dr. Simon's
methodology, was harmless error where it was a ruling in the
alternative, and where Grandmother had the opportunity to cross-
examine and challenge Dr. Simon at trial. We conclude that the
Family Court did not abuse its discretion in granting Caregivers'
adoption petition. We strike FOF 163, without prejudice, as an
unnecessary and irrelevant finding in these adoption proceedings,
and affirm in all other respects.
I. BACKGROUND
Child was born November 5, 2013, at Kona Community
Hospital to biological mother ST (Mother), and biological father
LE (Father). Mother is the biological daughter of Grandmother
and MT (Grandfather). Mother had emotional and substance abuse
issues with alcoholism, drug addiction and mental health problems
plaguing her throughout most of her adult life. On March 23,
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2016, Mother was arrested for a felony abuse charge related to
Grandmother. Grandmother was contacted by the Kona Police
Department to come and pick up Child, who was with Mother at the
time of her arrest, and Grandmother did so, bringing Child back
to Grandmother's home. The following day, Grandmother reported
to the DHS that she had Child. Child was temporarily placed with
Grandmother, but she purportedly asked Child Welfare Services
(CWS) to move him, less than three days after placement, fearing
that Mother would make good on threats of violence she had made
on Grandmother and Child. While this reason is disputed by the
DHS and Caregivers, the parties agreed that Grandmother requested
the removal, and that Grandmother did not ask for Child to be
returned to her care until sometime around Mother's death. On
March 31, 2016, the DHS filed a Petition for Temporary Foster
Custody of Child in the Family Court of the Third Circuit, in FC-
S No. 16-0013K.
As General Licensed Resource Caregivers, Caregivers
agreed to take Child. After a brief reunification with Mother,
Child was again placed with Caregivers in August 2016, after
Mother abandoned Child at a homeless shelter. Sometime around
September 13, 2016, prior to Mother's death, Grandmother
contacted a CWS social worker, Kerry Perez (Social Worker), about
having full custody of Child, but Social Worker told Grandmother
that full custody of Child "was not possible at that time because
[Mother] still had rights to a possible reunification with
[Child] depending on her progress and compliance with the Interim
Service Plan." On September 15, 2016, Mother died from injuries
she sustained in an automobile collision. In September and
October 2016, after Mother's death, Grandmother took necessary
steps to be considered for Child's placement with her;
Grandmother submitted a Foster Home Application for Child,
completed the Relative Response Form, and completed all of the
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requirements of the H.A.N.A.I. Resource Caregiving Training for
Children in the Foster Care System.
On December 6, 2016, Grandmother filed a motion to
intervene in the FC-S case,5 after learning that Caregivers asked
the Family Court6 for permission to take Child on a family
vacation to the mainland, which would include a visit with
Grandfather, Grandmother's ex-husband. On December 29, 2016, the
Family Court denied Grandmother's motion to intervene, and Child
was permitted to join Caregivers' family trip, including the
visit with Grandfather and Grandfather's extended family.
On March 2, 2018, the DHS filed its Permanent Plan
Report in the FC-S case, which recommended permanent placement of
Child with Caregivers upon the termination of parental rights.
On March 29, 2018, Grandmother filed her petition to
adopt Child in Grandmother's adoption case FC-A No. 18-1-005K.
On May 11, 2018, the Family Court in the FC-S case
terminated the parental rights of Mother and Father, and
appointed the DHS permanent custodian of Child. At that time,
Grandmother was still not a party to the FC-S case.
On May 14, 2018, the DHS filed its objections to
Grandmother's petition in the adoption case, FC-A No. 18-1-005K.
On August 13, 2018, the DHS filed a petition on behalf
of Caregivers, in FC-A No. 18-1-019K, for Caregivers to adopt
Child.
The consolidated trial on the competing adoption
petitions was held for approximately twelve days from May through
October of 2019 on the following dates: May 3, May 29, May 30,
May 31, June 26, June 28, August 9, August 12, August 14,
September 25, September 30, and October 7, 2019. Child was
5
FC-S No. 16-0013K was a child welfare case involving the DHS's
motion for termination of Mother's and Father's parental rights over Child.
6
The Honorable M. Kanani Laubach presided over Grandmother's motion
to intervene in the FC-S case.
5
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nearly six years old at the time of the 2019 trial, and had
resided continuously with Caregivers and their children since
August 2016.
During the ongoing trial of the contested adoption
cases in FC-A No. 18-1-005K and FC-A No. 18-1-019K, on June 12,
2019, the DHS filed an ex parte motion on behalf of Caregivers,
to request permission from the Family Court in the FC-S case to
travel with Child to the mainland and visit Caregivers' families,
Grandfather's family, and Child's biological cousins and maternal
aunt who flew in from France for the visit. The Family Court
granted the ex parte motion and entered an order approving travel
on condition that the DHS notify Grandmother of the travel plans
and arrange make-up visitation with her. On June 24, 2019,
Grandmother filed an ex parte motion to shorten time on
Grandmother's second motion to intervene in the FC-S case, and to
vacate the Family Court's order granting the DHS's travel
request. Grandmother sought to block Child's travel alleging
that it would re-traumatize Child to be away from Grandmother.
The Family Court denied Grandmother's motion to vacate
Child's travel, but on August 28, 2019, granted Grandmother's
second motion to intervene in the FC-S case.
The Family Court filed its Decision and Order on
December 30, 2019, awarding adoption of Child to Caregivers. The
Adoption Decree in favor of Caregivers was filed on February 27,
2020. Grandmother timely appealed.7
7
Self-represented Caregivers filed an Answering Brief that does not
comply with HRAP Rule 28(c). In substance, Caregivers "adopt-in-full" the
DHS's Answering Brief, and the remainder reads more like a letter to the
court. However, the Hawai#i Supreme Court has stated that, to promote access
to justice, pleadings prepared by self-represented litigants should be
interpreted liberally; and that self-represented litigants should not be
automatically foreclosed from appellate review because they fail to comply
with court rules. See Erum v. Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815,
827-28 (2020). Accordingly, we may consider the Caregivers' filing.
6
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II. DISCUSSION8
A. Claim of "ex parte" communication in FC-S case.
Grandmother's contention that the Family Court violated
her due process rights by allowing ex parte communication in the
FC-S case without notice to Grandmother, is without merit.
Grandmother was not allowed to intervene in the FC-S case until
2019. Grandmother's arguments points to two specific instances
of ex parte communication in the FC-S case in 2018, prior to
Grandmother's intervention: (1) a letter from the Caregivers to
the Family Court presented at a September 24, 2018 hearing in the
FC-S case; and (2) "safety concerns" about Grandmother that the
Guardian ad Litem, Madeline Reed (GAL), brought up at a October
26, 2018 hearing in the adoption case, that had been raised in
the FC-S case.
Grandmother claims the Caregivers' letter contained
"negative and substantive ex parte communications" from Social
Worker, the GAL, and Caregivers. However, it appears that the
Family Court did not receive the letter into evidence at the
hearing, and at a subsequent hearing, clarified that the letter
was "not actually provided to the Court," and the Family Court
had not considered the letter.9 Grandmother does not cite to
8
We have reordered and consolidated Grandmother's points of error
for clarity.
9
The transcript of the September 24, 2018 FC-S hearing reflects the
Family Court did not receive the letter into evidence:
[SOCIAL WORKER]: Um, Your Honor, I just wanted to
make sure that you took note of the -- the resource parents
provided a letter that is an attachment on that report, um,
that they really would like to keep confidential which is
why I've submitted it in the FC-S case and not in the
adoption case, um.
THE COURT: Okay.
. . . .
[SOCIAL WORKER]: I just, um, you know, the -- the
resource parents have to continue to, um, work with
(continued...)
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where in the record the letter can be found, as required by HRAP
Rule 28(b)(3). See Taniguchi v. Ass'n of Apartment Owners of
King Manor, Inc., 114 Hawai#i 37, 53, 155 P.3d 1138, 1154 (2007)
(waiving argument not supported by reference to the record)
9
(...continued)
[Grandmother] who has, you know, there's been some, um,
negativity, and they wanna be able to share openly with the
Court in the best interest of [Child] without creating more
animosity, um, you know.
THE COURT: Sir, I understand. I understand that, um,
that you don't wanna, um, burn bridges when you don't have
to. The Court has not received this into evidence yet.
(Emphases added). At a subsequent hearing approximately a month later in the
adoption case, the Family Court responded to Grandmother's request for
document production, and specifically ordered the letter be produced to
Grandmother as follows:
[GRANDMOTHER'S COUNSEL]: Um, I think –- I think what
we would like to do with respect to the FC-S file . . . .
there appears to be a letter to the Court from [Caregivers].
Uh, the date of that letter is not identified. We have not
seen that. We don't know its contents.
It is our view that that letter –- that the other
documents the Court's identified as being confidential I
think are protected under the court records rules and that's
fine. Um, it's that one letter that is the subject of our
limited objections and we cited some authorities on that.
. . . .
THE COURT: -– but, um, I've already determined that
that letter is something that should be produced.
. . . .
THE COURT: –- the Court did wanna make a note that
with respect to that letter it was not actually provided to
the Court. Um, it was, um, I believe it was brought to
court, um, but then I said that if it wasn't gonna be given
to all of the parties then it wasn't something, um, that the
Court could actually review.
So I think it's part of the record because it existed
and so it got put in the file, but I wanted to note on the
record it's not something –- I mean I saw it because it's –-
it's in there now, but it's not something that had
previously been considered by the Court. Um, so I would not
agree, um, with the DHS's request that it not be produced
'cause I think it's relevant.
(Emphases added). The Family Court indicated that it did not consider the
letter.
8
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(citations omitted). Grandmother's contentions about the letter
are insufficient. Nor is there any indication that the Family
Court actually considered the letter. Grandmother's contention
of error is without merit.
Grandmother's second claim is that the GAL improperly
brought up "safety concerns" about Grandmother from the FC-S
case, at a October 26, 2018 hearing in this case. Grandmother
argues that the Family Court was privy to additional information
purportedly presented at the FC-S hearing, and the Family Court
improperly considered such information when addressing future
off-island travel. Our review of the pertinent transcript
reveals that no objection was raised during the hearing,10 and
10
The only discernible response we can find as to Grandmother's
second claim regarding the GAL's mention of "safety concerns" was made at the
October 26, 2018 hearing, as follows:
THE COURT: Okay? Anything else? Were there other
issues between –-
[GAL]: Yeah, just one matter for clarification.
So in the FC-S case, um, I believe there is already an
order stating that no one is to remove the child from the
Island of Hawai#i without court permission. Um, there has
been some concern that even after being instructed otherwise
that [Grandmother] had perhaps taken [Child] off island.
. . . .
[GRANDMOTHER'S COUNSEL]: It's the first I've heard of
it. Uh, I've -– I've heard absolutely no hint or suggestion
from any party that [Grandmother] has removed [Child] from
the island. Um, uh, I saw him this morning, uh, so I know
that he is on the island today, um, but, uh –-
[GAL]: Yeah. Today's not the issue.
. . . .
THE COURT: Not to interrupt you but I don't think it
was –- it was, uh, like yesterday or last week that there's
been, uh, an issue with, uh, with the child being removed
from the Big Island but.
. . . .
THE COURT: I'm talking about –- I'm talking about the
(continued...)
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this issue is waived. See HRAP Rule 28(b)(3); State v. Moses,
102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("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 . . . .");
State v. Hoglund, 71 Haw. 147, 150, 785 P.2d 1311, 1313 (1990)
("Generally, the failure to properly raise an issue at the trial
level precludes a party from raising that issue on appeal.").
As to Grandmother's argument that Grandmother's due
process rights were violated by the "ex parte" communication,
Grandmother has not indicated whether and how her due process
challenge was preserved below, and it is waived. See Moses, 102
Hawai#i at 456, 77 P.3d at 947; Hoglund, 71 Haw. at 150, 785 P.2d
at 1313.
B. FOF 163 was unnecessary and irrelevant.
Grandmother contends that the Family Court "exceed[ed]
its subject matter jurisdiction by finding that [the] DHS acted
reasonably in failing to place" Child with Grandmother in 2016,
10
(...continued)
–- off the islands.
[GRANDMOTHER'S COUNSEL]: Uh, to the –- to my best
knowledge that has never happened by [Grandmother]. It –-
it has happened that he's been taken to the mainland, um,
with the –-
THE COURT: With permission –-
[GRANDMOTHER'S COUNSEL]: –- State's approval.
THE COURT: –- of the Court. Right.
[GAL]: Yeah.
THE COURT: But I mean before you make any more
representations on the record you might wanna review the
documents just to see, uh, what the surrounding, uh,
understanding or what it was.
But I –- I'm not saying that it happened. I'm just
saying, uh, that the Court will go ahead and order that no
one shall take the minor off the Island of Hawai#i without
permission of the Court. . . .
(Emphasis added).
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and argues the Family Court "overreached" its jurisdiction in FOF
163.11 Grandmother argues that the Family Court did not have
subject matter jurisdiction to conclude that the DHS's 2016
placement decisions were reasonable, "essentially deciding the
main issue raised by [Grandmother] in a separate lawsuit filed
against [the DHS]."12 Grandmother's challenge to FOF 163 has
merit but on grounds different from what Grandmother argues.
"Subject matter jurisdiction is concerned with whether
the court has the power to hear a case." Int'l Bhd. of Painters
& Allied Trades, Local Union 1944 v. Befitel, 104 Hawai#i 275,
281, 88 P.3d 647, 653 (2004) (citation omitted). Grandmother
claims that FOF 163 was erroneous because it was "beyond the
court's reach" and jurisdiction and was an "attempt to hamstring
[Grandmother's] separate lawsuit against DHS." The Family Court
had subject matter jurisdiction to hear and decide the competing
adoption petitions in this case. While we reject Grandmother's
jurisdictional argument as without merit, we nevertheless agree
that FOF 163 was irrelevant to the issues in these adoption
proceedings.
11
FOF 163 provides: "For these and all other reasons supported by
the record herein the court finds that [the] DHS did not act unreasonably in
failing to place [Child] with [Grandmother] after the initial placement of
[Child] with [Grandmother] in March of 2016."
12
We take judicial notice of the records and files in Grandmother's
separate lawsuit filed on March 15, 2019, in the Circuit Court of the Third
Circuit (Circuit Court), Civil No. 3CC19100072K. See Hawai#i Rules of
Evidence Rule 201; see also State v. Kwong, 149 Hawai#i 106, 116-17, 482 P.3d
1067, 1077-78 (citing Eli v. State, 63 Haw. 474, 478, 630 P.2d 113, 116 (1981)
(where the equity of a situation dictates, an appellate court may use its
discretion to take judicial notice of court files that are not part of the
record of appeal)). Grandmother's Circuit Court complaint alleges, inter
alia, negligence against the State, negligent infliction of emotional
distress, and multiple violations of the Hawai#i State Constitution, against
defendants State of Hawai#i, the DHS Social Worker, the DHS Supervisor, the
DHS Unit Supervisor, the Caregivers, and "Doe Defendants." The Caregivers
were subsequently dismissed from the lawsuit on September 24, 2019 by
stipulation. The DHS Social Worker, DHS Supervisor, and DHS Unit Supervisor
were also dismissed from the lawsuit on January 3, 2020 after the Circuit
Court granted their motion to dismiss. On January 13, 2020, the State filed a
Motion for Summary Judgment as to the Third Circuit Court's lack of subject
matter jurisdiction based on judicial findings and rulings from the Family
Court; this motion was stayed as of April 21, 2020, pending the outcome of
this appeal.
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FOF 163's finding that the "DHS did not act
unreasonably" in its 2016 placement decision (to place Child with
Caregivers) was unnecessary and irrelevant to decide the
competing adoptions filed in 2018. The application of the HRS §
578-8 adoption criteria and the best interests factors in HRS §
571-46 to these competing adoption petitions does not require or
entail a judicial finding or determination of the reasonableness
of the DHS's placement decisions two years earlier. Because FOF
163 was unnecessarily included and outside the scope of the
current dispute in the adoption case, and given pending
litigation between the parties, we conclude it is appropriate to
strike FOF 163. See Chase v. Shasta Lake Union School Dist., 259
Cal. App. 2d 612, 616 (1968) ("Appellate courts . . . may strike
unnecessary findings[.]") (citation omitted). Accordingly, we
strike FOF 163. See id.C. No separate and immediate hearing required
for consent to adoption under HRS § 578-
2(c)(1)(H).
Grandmother challenges COL 1513 and contends that the
13
COL 15 states:
15. DHS, the agency having legal custody of [Child],
reasonably withheld its consent to [Grandmother's]
adoption of [Child] for the following reasons:
a. [Grandmother] had custody of [Child] in March,
2016 as a foster parent and it was [Grandmother]
who contacted DHS and asked them to remove
[Child] because she could not find the
appropriate child care. It was not until after
[Mother] passed away that [Grandmother] sought
to regain custody of [Child] and filed a second
application for foster custody of [Child];
b. [Grandmother] was not credible in asserting that
she will maintain connections between [Child]
and his other relatives;
c. [Grandfather] supported the adoption of [Child]
by the [Caregivers] and expressed reasonable
fears that [Grandmother] will cut-off contact
between [Child] and his family if [Grandmother]
(continued...)
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Family Court erred by concluding that the DHS reasonably withheld
consent to Grandmother's petition "despite evidence that HRS §
578-8 was satisfied" and without a "separate inquiry" into the
withholding of consent as required by Matter of Adoption of H.A.,
143 Hawai#i 64, 422 P.3d 642 (App. 2017). Grandmother claims
that after the DHS filed its May 14, 2018 written objections to
Grandmother's March 29, 2018 petition, the Family Court should
have held a "hearing immediately" on this issue, rather than
conducting the inquiry at trial one year later. Grandmother
argues that "[h]ad actual and timely inquiry been made into [the
DHS's] objections as required per 578-2(c)(1)(H)," the Family
Court would have "found unreasonable withholding of consent."
However, Grandmother does not point to, and the record
does not reflect, that Grandmother raised these challenges below,
i.e., that a separate hearing on the withholding of consent was
immediately required. This argument is waived. See Moses, 102
13
(...continued)
is allowed to adopt [Child], with which this
court concurs;
d. DHS believes it is in [Child's] best interest to
be adopted by the [Caregivers] and not
[Grandmother], with which this court concurs;
e. The [Caregivers] have carried [sic] for [Child]
since August 2016 and the [Caregivers] have done
an excellent job in meeting [Child's] needs;
f. [Child] is bonded to the [Caregivers], [and
Caregivers' three other children];
g. The [Caregivers] are committed to allowing
[Child] to have contact with all of his
relatives, including [Grandmother], [Sister],
and [Grandfather];
h. The [Caregivers] have consistently and regularly
facilitated contact and visitation with [Child]
by his relatives;
i. DHS was reasonably concerned that [Child] was
returning from visits with [Grandmother] in a
dysregulated condition, with which this court
concurs.
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Hawai#i at 456, 77 P.3d at 947; Hoglund, 71 Haw. at 150, 785 P.2d
at 1313.
D. Application of judicial estoppel was
harmless error.
Grandmother contends that the Family Court erred by
applying judicial estoppel, in COLs 3, 4, and 5, to Grandmother's
objections to the findings and recommendations of the custody
evaluator, Dr. Simon. Grandmother argues that the Family Court
misconstrued the parties' stipulation, drafted by Grandmother's
counsel, from an agreement for Dr. Simon to do an evaluation, to
a "non-existing agreement not to challenge whatever methodology
Dr. Simon chose to undertake." Grandmother also claims that the
Family Court "unfairly denied" Grandmother's discovery motions
for Hawai#i Family Court Rules (HFCR) Rule 3514 examinations by
the expert witnesses because "[u]nder HFCR 26(b), broad
discovery, including Rule 35 examinations, is generally
allowed."15 While the application of judicial estoppel was
14
HFCR Rule 35(a) pertinently provides for court orders to parties
to submit to physical or mental examinations, as follows:
PHYSICAL AND MENTAL EXAMINATION OF PERSONS.
(a) Order for examination. When the mental or physical
condition (including the blood group) of a party, or of a
person in the custody or under the legal control of a party,
is in controversy, the court in which the action is pending
may order the party to submit to a physical or mental
examination by a suitably licensed or certified examiner or
to produce for examination the person in the party's custody
or legal control. The order may be made upon the agreement
of the parties or on motion for good cause shown and upon
notice to the person to be examined and to all parties and
shall specify the scope of the examination and the person or
persons by whom it is to be made.
. . . .
(Bolding in original).
15
HFCR Rule 26(b)(1) provides generally that:
Parties may obtain discovery regarding any matter, not
privileged, or otherwise protected by law, which is relevant
(continued...)
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erroneous, we nevertheless conclude such error was harmless.
"[T]he family court's COLs are reviewed on appeal de
novo, under the right/wrong standard[,]" and consequently, COLs
are "not binding upon an appellate court and are freely
reviewable for their correctness." In re Doe, 95 Hawai#i 183,
190, 20 P.3d 619, 623 (2001) (italics in original) (internal
quotation marks omitted). COLs 3, 4, and 5 state:
3. Pursuant to the doctrine of judicial estoppel,
a party will not be permitted to maintain inconsistent
positions or to take a position in regard to a matter
which is directly contrary to, or inconsistent with, one
previously assumed by him, at least where he has, or is
chargeable with, full knowledge of the facts, and another
will be prejudiced by his action. Judicial estoppel
partakes of positive rules of procedure based on manifest
justice and, to a greater or lesser degree, on considerations
of the orderliness, regularity, and expedition of litigation.
This doctrine prevents parties from playing fast and loose
with the court or blowing hot and cold during the course of
litigation. Roxas v. Marcos, 89 Haw. 91, 99, 969 P.2d 1209,
1217 (Haw. 1998).
4. Upon the failure of [Grandmother] to have Dr.
Norman appointed as the custody evaluator, the parties
discussed alternative custody evaluators and agreed upon
Dr. Simon. [Grandmother] drafted, agreed to and accepted
the CE Stipulation and Order which expressly sets forth that
Dr. Simon would conduct a thorough and comprehensive custody
and visitation evaluation, as he sees fit at his sole
discretion - including determining which collaterals to
contact. In reliance upon the CE Stipulation and Order, the
court then proceeded to move forward with the litigation with
the understanding that Dr. Simon, as a neutral, would be
assisting the court and the parties in reaching a fair
resolution of their competing petitions. Prior to the
commencement of trial, Dr. Simon concluded in favor of the
[Caregivers] adopting [Child] over [Grandmother].
[Grandmother] immediately rejected Dr. Simon's report and
conclusions and sought, through her own testimony and that of
15
(...continued)
to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other
party, including the existence, description, nature,
custody, condition and location of any books, documents, or
other tangible things and the identity and location of
persons having knowledge of any discoverable matter. It is
not ground for objection that the information sought will be
inadmissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence.
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her experts, to discount every aspect of Dr. Simon's Report,
opinions and methodology.
5. As an alternative and independent basis for its
rulings herein the court finds that [Grandmother] is
judicially estopped from contesting Dr. Simon's methodology,
having previously solicited and obtained the opposing parties
and the court's agreements to allow Dr. Simon to conduct his
evaluation at his sole discretion.
(Emphasis added) (italics in original). COL 3 states the law of
judicial estoppel. COL 4 sets forth pertinent procedural history
and contains findings of fact, rather than conclusions of law,
which have not been shown to be clearly erroneous. See Kilauea
Neighborhood Ass'n v. Land Use Comm'n of the State of Hawaii, 7
Haw. App. 227, 229, 751 P.2d 1031, 1034 (1988) (accuracy of label
affixed by agency, as a finding of fact or conclusion of law, is
freely reviewable by the appellate courts). As to COL 5,
however, where the Family Court applied judicial estoppel against
Grandmother's challenge to Dr. Simon's methodology because of the
parties' prior agreement, we conclude the Family Court erred.
Grandmother asserts that "[u]nder the Stipulation, made
pursuant to HRS § 571-45 and § 571-46(4), [Grandmother] was free
to cross-examine Dr. Simon in all respects as HRS § 571-46(a)
expressly provides." In the November 21, 2019 Stipulation and
Order for Appointment of Custody/Visitation Evaluator
(Stipulation), entered into pursuant to HRS §§ 571-45 (2018) and
571-46(a)(4) (2018),16 the parties agreed to the appointment of
Dr. Simon as the neutral custody evaluator who would prepare a
report for the Family Court. HRS § 571-46(a)(4) provides the
parties with the right to object to the custody evaluator's
16
HRS § 571-45 provides for, inter alia, social studies, assessments
and investigation reports to be completed for the courts prior to dispositions
and decisions regarding disputed custody or support issues.
The Stipulation incorrectly cited HRS § 571-46(4); the correct
statute is HRS § 571-46(a)(4).
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report and a right to cross-examine the author of the report.17
Consistent with HRS § 571-46(a)(4), there was no language in the
Stipulation that prohibited any party from challenging Dr.
Simon's report. Thus, this portion of COL 5, where the Family
Court applied judicial estoppel to Grandmother's challenge to Dr.
Simon's methodology, was wrong.
We nevertheless conclude that the Family Court's
erroneous application of judicial estoppel was harmless because
the Family Court stated that estoppel was applied as "an
alternative and independent basis for its rulings herein . . . ."
COL 5 (emphasis added); see HFCR Rule 61.18 This error did not
affect Grandmother's substantial statutory right to challenge Dr.
Simon at trial, where the record reflects that Grandmother was
afforded the opportunity to question and examine Dr. Simon at
trial, via depositions, which were made a part of the trial
17
HRS § 571-46(a)(4) provides:
Whenever good cause appears therefor, the court may require
an investigation and report concerning the care, welfare,
and custody of any minor child of the parties. When so
directed by the court, investigators or professional
personnel attached to or assisting the court, hereinafter
referred to as child custody evaluators, shall make
investigations and reports that shall be made available to
all interested parties and counsel before hearing, and the
reports may be received in evidence if no objection is made
and, if objection is made, may be received in evidence;
provided the person or persons responsible for the report
are available for cross-examination as to any matter that
has been investigated. . . .
(Emphasis added).
18
HFCR Rule 61, Harmless Error, provides:
No error . . . or defect in any ruling or order . . .
is ground for granting a new trial or for setting aside a
verdict or for vacating, modifying, or otherwise disturbing
a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice.
The court at every stage of the proceeding must disregard
any error or defect in the proceeding that does not affect
the substantial rights of the parties.
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record by agreement, and Dr. Simon's trial testimony by video
conference. See id.
Grandmother also argues that the Family Court "unfairly
denied" her HFCR Rule 35 motions for examination, where Dr.
Simon's final report was not submitted until April 30, 2019,
three days before trial.19 See FOF 250. We conclude that the
Family Court did not abuse its discretion in denying these
requests.
We review a trial court's rulings on discovery matters
for abuse of discretion. Fisher v. Grove Farm Co., Inc., 123
Hawai#i 82, 94, 230 P.3d 382, 394 (App. 2009) (citation omitted).
The Family Court denied Grandmother's first Rule 35 motion for
Dr. Norman to conduct an examination of Child without prejudice
on October 1, 2018, because the Family Court wanted to wait for
the custody evaluator's report. See FOFs 289, 290. This was not
an abuse of discretion. On April 9, 2019, Grandmother moved the
court for Rule 35 examinations, both for retroactive approval of
examinations that Dr. Norman had improperly conducted of Child
without court approval, and for prospective approval for future
testing of Child by Dr. Burdick and Dr. Norman. See FOFs 301,
302. The Family Court denied the motion for retroactive
approval, and denied the request for additional testing of Child
because the court did not want to delay the commencement of
trial. See FOFs 291, 301, 302. The Family Court did not abuse
its discretion in denying these requests.
Grandmother claims the Family Court "unfairly denied"
the Rule 35 motions because at trial, the Family Court "then
discounted the testimony of Dr.'s [sic] Norman and Burdick, in
part because examinations had not been done," citing FOFs 298-
300, 309, and 314-317, 340 and 346. We have reviewed these
19
Grandmother did not raise the denial of the Rule 35 discovery
motions in her point of error as required under HRAP Rule 28(b)(4). However,
we review her argument in the interest of addressing the merits of appeals
where possible.
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findings, which have not been challenged by Grandmother, and they
do not reflect that the reason why the Family Court rejected the
testimony of Dr. Norman and Dr. Burdick was "in part because
examinations had not been done[.]" Unchallenged findings are
binding on appeal. In re Doe, 99 Hawai#i 522, 538, 57 P.3d 447,
463 (2002) (citation omitted). FOFs 298-300 recount the
procedural facts surrounding the requests for examination. FOFs
309 and 314 refer to Dr. Norman's lack of meeting with Caregivers
and lack of observation of Child in the Caregivers' home; and
concludes that these deficiencies, inter alia, render Dr.
Norman's opinions "factually flawed." The second motion for Rule
35 examination requested additional testing of Child; not to meet
with Caregivers or to observe Child in Caregivers' home. In FOFs
315-317, the Family Court weighed and considered Dr. Norman's
testimony, finding him not credible, and the fact that the Rule
35 examination for testing of Child "had not been done" was not a
factor in its assessment. In FOF 340, the Family Court
discounted Dr. Burdick's testimony because he did not meet with
Caregivers, not because the additional testing of Child was not
done. In FOF 346, the Family Court rejected Dr. Burdick's report
due to its reliance on Dr. Norman's report and opinion.
Grandmother's contentions are without merit.
E. The Family Court did not err in accepting Dr.
Simon's opinions and rejecting the opinions of
Grandmother's experts.
Grandmother contends that the Family Court erred in
accepting Dr. Simon's opinions and rejecting the opinions of Drs.
Gould, Norman, and Burdick. Grandmother argues the Family Court
should not have discounted: (1) the reliability of Dr. Gould's
report; (2) the Bracken Test performed by Dr. Norman; and (3) the
reliability of Dr. Burdick's findings. Grandmother challenges,
inter alia, Dr. Simon's methodology and analysis, as "poor,"
"patently unreliable," and "conclusory;" the lateness of Dr.
Simon's report; and the report's lack of focus on the statutory
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criteria. We conclude the Family Court did not err or abuse its
discretion.
"The family court is given much leeway in its
examination of the reports concerning a child's care, custody and
welfare[.]" Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355,
360 (2006) (citing Doe, 95 Hawai#i at 190, 20 P.3d at 623). Its
conclusions, if supported by the record and not clearly
erroneous, must stand on appeal. Id. "It is well-settled that
an appellate court will not pass upon issues dependent upon the
credibility of witnesses and the weight of evidence; this is the
province of the trier of fact." Id.; see JM v. YM, No. CAAP-14-
0001178, 2016 WL 300900, at *3 (Haw. App. Jan. 25, 2016) (mem.)
(holding that it was not clearly erroneous for the family court
to have given less weight to an expert's testimony than to the
testimony of the custody evaluator).
Here, Grandmother's experts testified and presented
their reports at trial. Dr. Simon also testified at trial, via
deposition and live trial testimony. As factfinder, the Family
Court heard all of the evidence, specifically evaluated and
weighed each expert's testimony, and made credibility
determinations which it explained in detailed FOFs/COLs. The
Family Court's determinations of each expert's credibility, and
the weight to be given to each expert's testimony, were well
within its broad discretion and role as factfinder – and thus,
Grandmother's contentions are without merit. See Fisher, 111
Hawai#i at 46, 137 P.3d at 360.
F. The Family Court did not abuse its discretion
in denying Grandmother's petition.
Grandmother contends that the Family Court erred in
denying her Petition because: (1) Grandmother satisfied the HRS
§ 578-8 adoption requirements; (2) the court erroneously analyzed
the "mandatory HRS § 578-8 factors and the discretionary HRS §
571-46 best interest factors;" and (3) there were errors and
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omissions in the FOFs/COLs and that Child's best interest was
adoption by Grandmother. We reject Grandmother's contention that
the Family Court erred in denying her Petition.
"[W]hen a conclusion of law presents mixed questions of
fact and law, we review it under the 'clearly erroneous' standard
because the court's conclusions are dependent on the facts and
circumstances of each individual case." JW v. RJ, 146 Hawai#i
581, 585, 463 P.3d 1238, 1242 (App. 2020) (citing Estate of Klink
ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523
(2007)).
Adoption proceedings are governed by HRS Chapter 578.
In re H.A., 143 Hawai#i at 75, 422 P.3d at 653. "[N]o decree of
adoption may be entered unless all of the HRS § 578-8(a)
requirements have been satisfied." Id. at 78-79, 422 P.3d at
656-57. HRS § 578-8(a),20 sets forth four criteria that must be
assessed in order for the Family Court to enter an adoption
decree: (1) the child is adoptable; (2) the child is physically,
mentally, and otherwise suitable for adoption by the petitioners;
(3) the petitioners are fit and proper persons who are
20
HRS § 578-8(a)(1)-(4) (2018) provides as follows:
(a) No decree of adoption shall be entered unless a
hearing has been held at which the petitioner or
petitioners, and any legal parent married to a petitioner,
and any subject of the adoption whose consent is required,
have personally appeared before the court, unless expressly
excused by the court. After considering the petition and
any evidence as the petitioners and any other properly
interested person may wish to present, the court may enter a
decree of adoption if it is satisfied that:
(1) The individual is adoptable under sections 578-1
and 578-2;
(2) The individual is physically, mentally, and
otherwise suitable for adoption by the petitioners;
(3) The petitioners are fit and proper persons and
financially able to give the individual a proper home
and education, if the individual is a child; and
(4) The adoption will be for the best interests of
the individual[.]
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financially able to give the child a proper home and education;
and (4) the adoption is in the best interests of the child. A
family court's "determination of what is or is not in a child's
best interests is reviewed on appeal for clear error." Id. at
75, 422 P.3d at 653 (citation omitted).
Here, the Family Court addressed each of the four
criteria, and determined it was in Child's best interests for the
Caregivers' petition to be granted. Grandmother's arguments
focus on Factor 3 (HRS § 578-8(a)(3)), where the Family Court
found that the Caregivers are fit and proper adoptive parents and
financially able to give Child a proper home and education (see
COL 19); and Factor 4 (HRS § 578-8(a)(4)), where the Family Court
found it was in Child's best interests to be adopted by the
Caregivers. See COLs 20 and 26. It was not erroneous for the
Family Court to grant the Caregivers' petition after weighing the
evidence and drawing conclusions as to each HRS § 578-8 factor.
See id.; JW, 146 Hawai#i at 585, 463 P.3d at 1242.
With regard to Factor 3, Grandmother argues that the
Family Court did not adequately address the financial ability of
Caregivers pursuant to HRS § 578-8(a)(3), which states: "The
petitioners are fit and proper persons and financially able to
give [child] a proper home and education. . . ." Grandmother
challenges COLs 19 and 33,21 that determined that Caregivers are
"financially able" to give Child a proper home and education.
Grandmother argues that no findings were made substantiating
Caregivers' financial ability, other than a conclusory statement
that the Caregivers are financially able to provide for Child.
While there are findings that reference Caregivers' travel to
21
COL 19 states: "The [Caregivers] are fit and proper adoptive
parents and financially able to give [Child] a proper home and education, as
required by HRS § 578-8(a)(3)."
COL 33 states: "Based on the Court's FOF set forth above, the
court concludes that the four factors in HRS § 578-8(a) are satisfied by the
adoption of [Child] by the [Caregivers]."
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California "at least once a year to visit their family and
friends," (FOF 195), and that Caregivers have included Child in
their travel plans since he has been placed with them (FOF 196),
there appear to be no additional findings that provide specific
details as to the Caregivers' financial ability. Here, the
Family Court found, based on the record before it, that
Caregivers are "financially able" to provide for Child (see FOF
105) and concluded that Caregivers are fit and proper adoptive
parents and financially able to give Child a proper home and
education under HRS § 578-8(a)(3). See FOF 105,22 COL 19. The
fact that the record showed, and the Family's Court's findings
reflected, Grandmother's strong financial ability does not render
the Family Court's finding that Caregivers were "financially
able" to provide for Child clearly erroneous. Given the broad
discretion afforded to family court decisions, we decline to
disturb the Family Court's FOFs and COLs containing mixed
findings of fact and conclusions of law, as we cannot conclude
that they are clearly erroneous. See JW, 146 Hawai#i at 585, 463
P.3d at 1242.
As to Factor 4, Grandmother addresses each of the
sixteen "best interest" HRS § 571-46(b) factors,23 and contends
22
FOF 105 states: "The [Caregivers] are financially able to provide
for [Child]."
23
HRS § 571-46 (2018), Criteria and procedure in awarding custody
and visitation; best interest of the child, 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;
(continued...)
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that her petition should have been granted because the Family
Court should not have applied these "discretionary" factors.
Grandmother argues that "HRS § 578-8(a)(4) requires the court to
fashion its own best interest analysis."
We do not agree that HRS § 578-8(a)(4) requires the
23
(...continued)
(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 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 wilful 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[.]
HRS §§ 571-46(b)(1)-(16).
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Family Court to fashion its "own best interest analysis." In In
re H.A., we noted that while "HRS chapter 578 does not define
what constitutes the best interest of the child in the context of
adoption proceedings," we observed that "Hawai#i courts have
often looked to applicable best-interest-of-the-child factors
provided in HRS chapter 571 for the purpose of determining
custody and visitation in divorce proceedings." 143 Hawai#i at
76, 422 P.3d at 654 (citing In the Interest of AS, 130 Hawai#i
486, 507, 312 P.3d 1193, 1214 (App. 2013), affirmed and clarified
by In re AS, 132 Hawai#i 368, 376-77, 322 P.3d 263, 271-72
(2014)). The Family Court's application of the HRS § 571-46(b)
best interest factors to these adoption petitions was not wrong.
See id. The Family Court is "granted broad discretion to weigh
the various factors involved, with no single factor being given
presumptive paramount weight, in determining whether the standard
has been met." Fisher, 111 Hawai#i at 50, 137 P.3d at 364.
Grandmother's contention is without merit.
Grandmother finally contends that under a best
interests analysis under HRS § 578-8(a)(4), kinship should be the
"anchor," but the Family Court erroneously treated it as a "non-
factor." Grandmother argues that kinship is a "mandatory and
substantial factor," and that in In re AS, "the [supreme] court
said that . . . kinship is the 'anchoring proposition in the sea
of circumstances.'" Opening Brief at 43. Grandmother
mischaracterizes this quote as the holding of the Hawai#i Supreme
Court when it was not; this quote comes from the concurring
opinion by Justices Acoba and Pollack. In re AS, 132 Hawai#i at
390, 322 P.3d at 285 (Acoba, J. concurring). Here, the Family
Court's conclusions regarding kinship in COL 28, correctly
acknowledged that "kinship may be considered a substantial factor
in placement decisions." See In re AS, 132 Hawai#i at 377-78,
322 P.3d at 272-73; In re H.A., 143 Hawai#i at 64, 422 P.3d at
642. The Family Court ultimately concluded that: "Under the
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circumstances of this case, the court does not find that
[Grandmother's] kinship to [Child] is sufficient to overcome the
best interest of [Child] being placed with the [Caregivers]. . .
. Thus, on the entire record in this case, kinship does not trump
all of the other factors set forth in HRS § 571-46(b)." COL 29.
The record reflects that the Family Court carefully
considered and weighed each of the best interest factors in HRS §
571-46(b), and made detailed and comprehensive findings to
explain its rationale. We conclude that there was no clear error
in the Family Court's determination of what is in the best
interests of Child. See In re H.A., 143 Hawai#i at 75, 422 P.3d
at 653. Accordingly, we do not disturb the Family Court's
decision that the adoption of Child by Caregivers was in Child's
best interest.
III. CONCLUSION
Based on the foregoing, we affirm the (1) December 30,
2019 Findings of Fact, Conclusions of Law, Decision and Order,
with the exception of Finding of Fact 163 which is stricken
without prejudice, and (2) February 27, 2020 Adoption Decree,
filed in the Family Court of the Third Circuit.
DATED: Honolulu, Hawai#i, December 28, 2021
On the briefs:
/s/ Lisa M. Ginoza
Kai Lawrence Chief Judge
for Petitioner-Appellant
/s/ Keith K. Hiraoka
Kathy K. Higham Associate Judge
Deputy Attorney General
for Respondent-Appellee State /s/ Karen T. Nakasone
of Hawai#i Associate Judge
KM and JW
Respondent-Appellees, self-
represented litigants
26