In re M.A. and H.W. ( 2010 )

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APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-S NOS. 05-l-OO67 and 05-1-OO68)
CONFIDENTIAL
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Fujise and Leonard, JJ.)
Appellant Mother (Mother) appeals the Orders Revoking
Foster Custody; Granting Permanent Custody; Ordering Permanent
Plans Dated June 23, 2009 as Modified; Setting A Permanent Plan
2009 (Permanent Custody Order),
Review Hearing, filed on July l3,
05-1-0067 and 05-l-0O68,
Mother also seeks relief from
in FC~S Nos. in the Family Court of the
Second Circuit
the Family Court's August l8,
(Order Denying Reconsideration).
On appeal, Mother contends that the Family Court:
(Family Court).Y
2009 order denying her motion to
reconsider
(l)
clearly erred in finding that Mother is not currently able and
willing to provide a safe family home with the assistance of a
service plan and that she will not be able to do so in the
reasonably foreseeable future; (2) clearly erred by failing to
make proper findings of fact to support its conclusion that,
inter alia, Mother could not provide a safe family home; (3)
clearly erred by misquoting and mischaracterizing testimony of a
(4) unduly placed more emphasis on the age of the
witness; and
case than the clear and convincing evidence standard of Hawaii
Revised Statutes (HRS) § 587~73(l) (Supp. 2009).
i/ The Honorable Geronimo Valdriz, Jr. presided.
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Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Mother's points of error as follows:
We agree with Mother's contention that the Family Court
erred by failing to make sufficient findings of fact to support
its conclusion that, inter alia, Mother could not provide a safe
family home. The Permanent Custody Order does not contain any
findings of fact. The Permanent Custody Order simply states that
"based upon the record and/or evidence presented, the Court finds
by clear and convincing evidence that pursuant to [] HRS § 587-
73(a) . . .," and the remainder of the Permanent Custody Order
consists of standardized conclusions of law concluding that
Mother could not provide a safe family home. No separate
findings of fact were entered pursuant to HawaiYi Family Court
Rules (HFCR) Rule 52(a).
The Department of Human Services (DHS) argues that the
Family Court made findings of fact which consisted of summaries
of witness testimony; as demonstrated in a transcript dated, July
6, 2009. Summaries of witness testimony also are included in the
Order Denying Reconsideration. Relying in part on ln re Doe, 96
Hawafi 255, 30 P.3d 269 (App. 2001), DHS argues that a summary
of witness testimony may be construed as a finding of fact when
combined with conclusions of law that state Mother is unable to
provide a safe family home. In that case, the appellant claimed
that recitation of witness testimony was not a finding of the
court. ;Q; at 259, 30 P.3d at 273. This court stated: "We
agree that the family court's statement of the evidence, by
itself, is not its finding of fact. However, although we do not
recommend doing it this way, we conclude that FsOF nos. l3, l4,
and l5 validly convert the family court's statements of the
evidence into its findings of fact. These latter findings state,
in effect, that the family court found the stated evidence to be
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
credible evidence of the facts " lQ; In the case at bar, there
are no similar findings indicating that the Family Court
evaluated the credibility of the witnesses and the weight of the
evidence, in the context of the clear and convincing evidence
standard.
DHS also cites In re T Children, ll3 Hawafi 492, l55
P.3d 675 (App. 2007). In that case, the presiding family court
trial judge retired prior to the entry of HFCR Rule 52 findings
of fact and this court concluded that the subsequent family court
judge was not authorized to enter findings of fact. ;Q; at 497,
155 P.3d at 680. The court nevertheless held that, under the
circumstances of that case, the trial judge's ultimate findings
of fact adequately supported the family court's order terminating
parental rights and awarding permanent custody to DHS and were
not clearly erroneous. Ld; at 498, l55 P,3d at 68l. The unique
circumstances of that case ~ including, inter alia, the
retirement of the trial judge before the entry of the detailed
supporting findings of fact - are not evident in the record of
the present case,
ln this case, absent further supporting findings of
fact, the Family Court's brief and conclusory summaries, which
misstate the testimony of Mother's counselor, as admitted by
DHS,W do not constitute the clear and convincing evidence
required pursuant to HRS § 587-73(a). To conclude in every case
that ultimate findings of fact are sufficient to meet the State's
burden of proof by clear and convincing evidence could render
meaningless the requirements of HFCR Rule 52 and HRS § 587-73(a).
This court generally will not disturb the trial court's
assessment of the credibility of witnesses or re-weigh the
3/ DHS argues that the Family Court's mischaracterization of the
counselor's testimony is harmless error. Based on the record before us, which
does not include any findings regarding the credibility of or the weight given
to the various witnesses' testimony, we cannot conclude that the
mischaracterization of this witness's testimony was harmless error.
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evidence. See, e.q., In re Jane Doe, 95 Hawafi l83, l90, 196-
97, 20 P.3d 6l6, 623, 629-30 (200l) ("Because it is not the
province of the appellate court to reassess the credibility of
the witnesses or the weight of the evidence, as determined by the
family court, the family court is given much leeway in its
examinations of the reports concerning a child's care, custody,
and welfare ") (Internal quotation marks, citations, and brackets
in original omitted; emphasis added). However, that deference is
based, at least in part, on findings of fact that evidence that
assessment. ;Q¢
For these reasons, we vacate the Family Court's July
l3, 2009 Permanent Custody Order and remand for further
proceedings consistent with this summary disposition order.
DATED: Honolulu, HawaFi, April l6, 20l0…
On the briefs:
Davelynn M. Tengan Chief Judge
for Appellant
Kavan K. Saiki v
Mary Anne Magnier Associate Judge ’
for Petitioner-Appellee ! j 11
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Department of Human Services