W.N. v. S.M..

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
30-JUL-2018
08:33 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
W.N., Petitioner-Appellant,
vs.
S.M., Respondent-Appellee.
SCAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CAAP-XX-XXXXXXX; FC-M NO. 14-1-0034K)
JULY 30, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
I. INTRODUCTION
In our previous decision in this case, A.A. v. B.B.,
139 Hawaii 102, 384 P.3d 878 (2016), we vacated the final
judgment of the family court denying the petition of A.A.
(hereafter W.N.) for joint custody of a minor child with B.B.
(hereafter S.M.). The case was remanded to the family court
with instructions that it determine whether W.N. established a
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prima facie case of de facto custody, and if so, that the court
render a custody award in the child’s best interest.
On remand, the family court entered an order without
holding a further evidentiary hearing or taking additional
evidence in which it found that W.N. was not a “fit and proper
person” as required to establish a prima facie entitlement to
custody of the minor child. W.N. appealed the family court’s
adverse ruling, and the request to transfer the case to this
court was granted. We conclude that the family court erred in
not holding a further hearing to ascertain whether W.N. is
presently a fit and proper person and whether a custody award
would be in the minor child’s present best interests.
Accordingly, we vacate the family court’s 2017 Order and remand
the case for a further evidentiary hearing consistent with this
opinion. We also provide guidance as to evidentiary matters
that may arise on remand.
II. FACTS AND PROCEDURAL HISTORY
W.N. and S.M. entered into a committed relationship in
March 2009. In 2011, W.N. and S.M. jointly decided to bring
S.M.’s newborn biological granddaughter (Child) into their home
to raise her as their daughter. S.M. legally adopted Child, and
S.M. and W.N. jointly shared parental care, duties, and
responsibilities for Child. W.N., S.M., Child, and S.M.’s
teenage son (Son) lived together as a family unit from October
2
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2011 until October 2013. In October 2013, W.N. and S.M.
separated, and they entered into a written 50/50 co-parenting
agreement for Child. In April 2014, S.M. sent W.N. a letter
declaring that he was revoking the 50/50 co-parenting agreement
on the basis that it was his parental right to do so.
In May 2014, W.N. filed a petition in the Family Court
of the Third Circuit (family court) seeking joint legal and
joint 50/50 physical custody of Child (custody petition)
pursuant to Hawaii Revised Statutes (HRS) § 571-46(a)(2) (Supp.
2013).1 W.N. asserted that he was the de facto parent of Child
and was a fit and proper person to have care, custody, and
control of Child. S.M. sought dismissal of the custody petition
1
HRS § 571-46(a) provides in relevant part as follows:
(a) In actions for divorce, separation, annulment, separate
maintenance, or any other proceeding where there is at
issue a dispute as to the custody of a minor child, the
court, during the pendency of the action, at the final
hearing, 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:
(1) Custody should be awarded to either parent or to
both parents according to the best interests of the
child, and the court also may consider frequent,
continuing, and meaningful contact of each parent
with the child unless the court finds that a parent
is unable to act in the best interest of the child;
(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the best
interest of the child. Any person who has had de
facto custody of the child in a stable and wholesome
home and is a fit and proper person shall be entitled
prima facie to an award of custody[.]
3
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contending that W.N. was a legal stranger to Child, that HRS §
571-46(a)(2) was unconstitutional, and that W.N. had no standing
before the family court.
On October 3, 2014, the family court held an
evidentiary hearing on the custody petition (2014 Hearing).2
Scott and Janet Crosier (collectively, the Crosiers) testified
that each had supervised visitations between W.N. and Child, and
they favorably described the interactions between W.N. and
Child. W.N. sought to introduce the visitation reports into
evidence that the Crosiers had each prepared contemporaneously
with the supervised visitations. The family court sustained
S.M.’s objections to their admission because they contained
hearsay statements of Child, rejecting W.N.’s argument that the
statements were not offered for the truth of the matter asserted
by Child. The court also sustained S.M.’s foundation objections
to the Crosiers using their respective visitation reports to
refresh their recollections. As to Janet Crosier, W.N.
proffered that the reports would aid her in recalling Child’s
behaviors and interactions with W.N. that she could not
remember.
Dr. Jamuna Wyss, who was qualified as an expert in
parent-child psychological relationships and parenting styles,
2
The Honorable Melvin H. Fujino presided.
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testified that he taught W.N. parenting techniques. Dr. Wyss
testified favorably as to W.N.’s relationship with Child. He
also testified that Child would likely suffer “damaging
psychological consequences” if W.N.’s relationship with Child
was terminated. W.N.’s counsel asked Dr. Wyss if he was aware
of any sexual abuse allegations against W.N. and sought to
introduce a letter written by Dr. Wyss to Child Welfare
Services. The court sustained S.M.’s objection to the admission
of the letter and did not allow Dr. Wyss to testify as to his
opinion on the allegations because it was outside the scope of
his April 25, 2014 clinical note (clinical note).3 Dr. Wyss then
testified generally that he did not believe W.N. posed any
threat to Child.
Additionally, W.N. sought to introduce progress notes
from his individual therapy sessions with Dr. Wyss, as well as
S.M. and W.N.’s couples therapy sessions with Dr. Wyss. The
court again sustained S.M.’s objection to the introduction of
the progress notes as outside the scope of Dr. Wyss’s clinical
note. Further, Dr. Wyss testified that he taught W.N. anger
3
S.M.’s counsel objected on the basis that the parties agreed to
exchange reports prepared by the expert witnesses prior to the hearing and as
such, the testimony should be limited to Dr. Wyss’s report--the April 25,
2014 clinical note. The record does not contain an on-the-record pretrial
ruling limiting expert testimony to the contents of the experts’ reports.
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management techniques4 and related that, in his opinion, W.N. had
made progress on anger management.5
Dr. Jennifer De Costa, a family counselor and a
licensed marriage and family therapist, was called by S.M. and
qualified as an expert in family behavior and relationships.
Dr. De Costa testified that she had treated Son and regularly
used written tests to assess Son’s depression and anxiety in
treatment. Dr. De Costa stated that she observed a correlation
between fluctuations in Son’s test scores and his interactions
with W.N. S.M. asked Dr. De Costa if Son had displayed “extreme
regression” since W.N. began visitation with Child, and Dr. De
Costa responded affirmatively.
Dr. De Costa testified that she also met with Child
and initially had no concerns as to Child’s development. After
visits started with W.N., however, Dr. De Costa stated that
Child began to exhibit “some regressive behaviors.” Dr. De
Costa answered “yes” when asked hypothetically whether she would
have concerns about Child having a custodial relationship with
W.N. given his anger management problem, her knowledge of W.N.’s
relationship with Son, and Child’s regressive behaviors. Dr. De
4
W.N. testified that his anger management problem is characterized
by raising his voice, swearing, and walking away to cool off.
5
Dr. Wyss indicated that his opinion on W.N.’s anger management
progress relied on W.N.’s self-reporting.
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Costa further testified that she did not think that termination
of the relationship would harm Child.
S.M. also called W.N.’s sister, C.N., to testify.
C.N. testified that she had concerns about W.N.’s temper, which
she had expressed to S.M., and that W.N.’s behavior had not
improved.
After the parties’ arguments, the family court ruled
that W.N. had not shown a compelling state interest as to why
the de facto custody presumption of HRS § 571-46(a)(2) should
apply to him under a strict scrutiny standard. The family court
denied the custody petition and allowed S.M. to stop all
visitations. On December 11, 2014, the family court entered
findings of fact, conclusions of law, and its final judgment on
the custody petition.
W.N. appealed, and following transfer of the case to
this court, we held that application of HRS § 571-46(a)(2) would
not infringe upon S.M.’s fundamental liberty interests or right
to privacy under the Hawaii Constitution, and that W.N. was
therefore not required to establish a compelling state interest
as a prerequisite for the family court to make a de facto
custody determination. A.A. v. B.B., 139 Hawaii 102, 108, 113-
16, 384 P.3d 878, 884, 889-92 (2016). We noted that the record
may support a finding that W.N. satisfied all elements of HRS §
571-46(a)(2), which would invoke the de facto custody
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presumption. Id. at 107 n.8, 384 P.3d at 883 n.8.
Additionally, although this court held that any error by the
family court in restricting Dr. Wyss’s testimony or excluding
the progress notes was harmless under the circumstances, we
stated that “if further evidentiary proceedings are held on
remand, the family court may revisit its ruling regarding the
proffered evidence.”6 Id. at 116 n.23, 384 P.3d at 892 n.23. We
vacated the final judgment denying W.N.’s custody petition and
remanded the case to the family court with instructions that the
court determine whether W.N. met the requirements for a de facto
custody presumption pursuant to HRS § 571-46(a)(2), and if so,
for a custody award in the child’s best interest. Id. at 116-
17, 384 P.3d at 892-93.
At a status conference following remand, the family
court indicated that it would limit its review to the existing
record and invited the parties to provide briefing on whether it
had authority for such limitation.7 W.N. submitted a memorandum
arguing that there was sufficient evidence in the record to
determine that he met the elements for a de facto custody
6
As to other evidentiary issues raised by W.N., this court held
that Dr. De Costa was properly qualified as an expert in her field and the
family court did not err in accepting her testimony. A.A., 139 Hawaii at 116
n.23, 384 P.3d at 892 n.23.
7
The Honorable Kanani Laubach presided over the proceedings on
remand.
8
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presumption and that an award of joint custody of Child to him
would be in the best interests of Child. In the alternative, if
the family court did not find that there was sufficient evidence
to establish a de facto custody presumption, W.N. argued that an
evidentiary hearing was necessary to supplement the 2014 Hearing
record. In support, W.N. contended that his arguments and
evidence presented at the 2014 Hearing were not focused on the
elements of HRS § 571-46(a)(2) because the family court
requested briefing on whether W.N. had a constitutional right
and a statutory basis to assert a custodial claim.
W.N. maintained that it would be error for the family
court to conclude that he failed to meet his burden to establish
that he is a “fit and proper person” without an opportunity to
supplement the record, particularly in light of this court’s
observation that the record may support a finding that W.N. met
all the elements of HRS § 571-46(a)(2). W.N. also argued that
the family court foreclosed him from presenting evidence from
Dr. Wyss to rebut allegations of sexual abuse that were used to
determine W.N.’s fitness for custody. W.N. further argued that
it would be a manifest injustice for the family court not to
consider new evidence on remand regarding W.N.’s fitness for
custody. As an offer of proof, W.N. stated that since the 2014
Hearing, he had obtained a State of Hawaii Department of Human
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Services foster care license, for which he underwent a
psychosexual evaluation.
S.M. filed a memorandum in support of limiting the
family court’s review on remand to the existing record. S.M.
argued that whether or not W.N. was a fit and proper person must
be determined as of the date of the 2014 Hearing because
considering new evidence on remand would improperly afford W.N.
a “second bite of the apple” and an opportunity to present
improvements to “his situation” in order to increase his fitness
for custody. Prior to holding a new evidentiary hearing, S.M.
argued, the family court should determine from the existing
record whether W.N. satisfied the elements of HRS § 571-46(a)(2)
for a de facto custody presumption.
The family court ruled that it would base its review
on the 2014 Hearing record to determine whether W.N. was
entitled to a de facto custody presumption. The court stated
that it would afford the parties an opportunity to raise any
evidentiary objections, in writing, from their review of a video
recording of the 2014 Hearing. W.N. reiterated the need to
supplement the record in order to present evidence on events
subsequent to the 2014 Hearing bearing upon the issue of whether
he is a fit and proper person. The court indicated that it
would take this argument under consideration.
10
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W.N. subsequently filed a petition raising objections
to the exclusion of the Crosiers’ visitation reports and Dr.
Wyss’s progress notes. Rather than excluding the Crosiers’
visitation reports, W.N. argued, any hearsay statements therein
could be redacted and the visitation reports could then be
considered in determining W.N.’s entitlement to a de facto
custody presumption and in rendering a custody award in the best
interests of Child. In addition, W.N. objected to the exclusion
of Dr. Wyss’s progress notes and argued the court should permit
Dr. Wyss to provide testimony to rebut the sexual abuse
allegations against W.N. Dr. Wyss’s testimony should address a
letter he wrote to Child Welfare Services regarding the
allegations, W.N. contended, and the letter should be admitted
into evidence. S.M. filed a statement of no objection to
limitation to the 2014 Hearing record on remand.
The family court denied all of W.N.’s evidentiary
objections. The court found that the Crosiers’ visitation
reports were hearsay and the Crosiers were allowed to testify,
and that Dr. Wyss’s progress notes were cumulative. The family
court then determined that based upon its review of the 2014
Hearing record, W.N. had failed to establish a prima facie case
under HRS § 571-46(a)(2) for a de facto custody presumption.
Accordingly, the family court ruled that it would not be in the
best interests of Child to award W.N. joint custody.
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On June 8, 2017, the family court entered its Findings
of Fact and Conclusions of Law and Order (2017 Order). The
family court found that a review of the transcripts and the
audio and video recording of the 2014 Hearing enabled it to
judge credibility and determine whether W.N. satisfied the
elements of HRS § 571-46(a)(2). Based upon this evidence, the
family court concluded that while W.N. met two of the three
elements of HRS § 571-46(a)(2), he did not meet his burden as to
the “fit and proper person” statutory element because of (1) his
undisputed anger management problem and (2) Dr. De Costa’s and
C.N.’s unfavorable testimony, including Dr. De Costa’s testimony
as to Child’s regression and Son’s performance on psychological
tests and “extreme regression.” The family court thus denied
W.N.’s custody petition.
W.N. timely filed a Notice of Appeal from the 2017
Order. The case was subsequently transferred to this court.
III. STANDARDS OF REVIEW
This court reviews the family court’s findings of
facts (FOF) under the “clearly erroneous” standard. Waldecker
v. O’Scanlon, 137 Hawaii 460, 466, 375 P.3d 239, 245 (2016).
A FOF is clearly erroneous when (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 has 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.
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Id. On appeal, the family court’s conclusions of law are
reviewed de novo under the right/wrong standard. Id. (citing In
re Doe, 95 Hawaii 183, 190, 20 P.3d 616, 623 (2001)).
“The interpretation of a statute is a question of law
reviewable de novo.” Kauai Springs, Inc. v. Planning Comm’n of
Cty. of Kauai, 133 Hawaii 141, 163, 324 P.3d 951, 973 (2014)
(quoting Franks v. City & Cty. of Honolulu, 74 Haw. 328, 334,
843 P.2d 668, 671 (1993)).
“[W]here the admissibility of evidence is determined
by application of the hearsay rule, there can be only one
correct result, and the appropriate standard for appellate
review is the right/wrong standard.” State v. Moore, 82 Hawaii
202, 217, 921 P.2d 122, 137 (1996) (internal quotation marks and
citation omitted).
IV. DISCUSSION
W.N. asserts that the family court abused its
discretion by denying his request to hold an evidentiary hearing
on remand. W.N. contends that the only disputed issue before
the family court on remand was whether he satisfied the “fit and
proper person” element of HRS § 571-46(a)(2) for application of
a de facto custody presumption. Yet, argues W.N., the family
court improperly limited evidence bearing upon this
determination by excluding (1) the Crosiers’ visitation reports
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based upon hearsay statements of Child;8 (2) Dr. Wyss’s progress
notes from the individual and couples therapy sessions, his
testimony as to matters ruled outside the scope of his clinical
note, and his letter to Child Welfare Services;9 and (3) evidence
that W.N. had subsequently obtained a foster care license that
required him to undergo a psychosexual evaluation. To determine
the best interests of Child, W.N. asserts, the family court must
consider the present circumstances instead of those from the
date of the 2014 Hearing. As such, W.N. maintains, it was a
manifest injustice for the family court to deny his request to
present new evidence and to hold based solely on the 2014
Hearing record that he is not “a fit and proper person.”10
In response, S.M. argues that the family court was not
required by this court’s decision to hold a new evidentiary
8
W.N. also challenged the ruling in the 2014 Hearing that did not
allow the Crosiers to use their reports to refresh their recollections.
9
W.N. argues that although in A.A. v. B.B. this court found that
the family court’s limitation of Dr. Wyss’s testimony and the exclusion of
the progress notes were harmless, it was error for the family court on remand
to prevent W.N. from offering relevant information to establish that he is a
“fit and proper person.” This court, W.N. asserts, foresaw this problem and
stated that the family court could revisit its evidentiary rulings on remand.
10
W.N. also argues that the trial court abused its discretion in
finding, contrary to this court’s footnote in A.A. v. B.B., that there was
not sufficient evidence in the record to hold that W.N. is a “fit and proper
person.” In doing so, W.N. maintains, the family court improperly
disregarded extensive favorable testimony from both Dr. Wyss and the Crosiers
as to W.N.’s relationship with and care of Child, as well as Dr. Wyss’s
testimony regarding W.N.’s progress in anger management. That evidence was
sufficient, W.N. contends, to find that he is a “fit and proper person.”
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hearing on remand. On the contrary, S.M. contends, the decision
indicated that the hearing record was sufficient to make a
determination as to whether W.N. had established a prima facie
case of a de facto custody presumption under HRS § 571-46(a)(2).
It would have been error, S.M. asserts, for the family court to
give W.N. an opportunity to re-litigate the issues heard at the
2014 Hearing with new facts.11 Additionally, S.M. argues that
the family court on remand properly excluded the evidence that
W.N. sought to introduce as it contained hearsay or was
needlessly cumulative and that the court rendered rulings as to
W.N.’s evidentiary objections in accordance with this court’s
evidentiary holdings in the first appeal.
We first address the question as to whether the family
court erred on remand when it denied W.N.’s request for a
further evidentiary hearing. Thereafter, we turn to W.N.’s
evidentiary objections on remand, including the exclusion of the
Crosiers’ visitation reports, the limitation of Dr. Wyss’s
testimony, and the exclusion of Dr. Wyss’s progress notes.
11
As to the family court’s conclusion that W.N. did not meet the
“fit and proper person” element, S.M. contends that W.N.’s admitted anger
management problem and the testimony regarding Child and Son’s regression,
sexual abuse allegations, and conflicts between S.M. and W.N. were sufficient
to establish that it would not be in the best interests of Child to award
W.N. joint custody. Thus, S.M. argues, the family court properly held that
W.N. is not a fit and proper person for custody.
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A. A Court Must Consider Relevant, Probative Evidence To
Determine Whether The Petitioner Is A Fit And Proper Person And
Whether A Custody Award Is In The Best Interests Of The Child
The primary issue before this court is whether the
family court erred on remand by precluding W.N. from presenting
evidence of circumstances arising after the 2014 Hearing that
directly related to whether W.N. was a “fit and proper person”
with a prima facie entitlement to custody of Child. This court
instructed the family court on remand to make a determination as
to whether W.N. satisfies the elements of HRS § 571-46(a)(2) for
a de facto custody presumption,12 and if so, to make a custody
award in the best interests of Child. A.A. v. B.B., 139 Hawaii
102, 116-17, 384 P.3d 878, 892-93 (2016). Based solely upon the
2014 Hearing record, the family court held that W.N. did not
satisfy the “fit and proper person” element of HRS § 571-
46(a)(2), and he was thus not entitled to a de facto custody
presumption for an award of custody of Child.
It is well settled that in child custody cases the
paramount concern is the best interests of the child. Doe v.
Doe, 98 Hawaii 144, 155, 44 P.3d 1085, 1096 (2002). The
criteria and procedures for the family court to award custody
12
HRS § 571-46(a)(2) (Supp. 2013) provides that a person other than
the child’s father or mother may establish that he or she is entitled to a
prima facie award of custody if that person “has had de facto custody of the
child in a stable and wholesome home and is a fit and proper person.”
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and determine the best interests of the child are set forth in
HRS § 571-46. HRS § 571-46 (Supp. 2016). We thus construe HRS
§ 571-46 to determine the legislature’s intent as to the
timeliness of information to be considered in determinations
implicating the best interests of the child. When construing a
statute, “our foremost obligation is to ascertain and give
effect to the intention of the legislature which is to be
obtained primarily from the language contained in the statute
itself.” Kauai Springs, Inc. v. Planning Comm’n of Cty. of
Kauai, 133 Hawaii 141, 163, 324 P.3d 951, 973 (2014) (quoting
Franks v. City & Cty. of Honolulu, 74 Haw. 328, 334, 843 P.2d
668, 671 (1993)).
Accordingly, we look first to the plain language of
HRS § 571-46, which indicates that current, relevant evidence is
required for a court to make an informed decision regarding
applicability of a de facto custody presumption. The
presumption’s pivotal requirement that a person “is [] fit and
proper,” HRS § 571-46(a)(2) (emphasis added), requires the court
to consider if the person is fit and proper to care for the
minor child at the time of the contemplated custody award. Such
a determination by its nature cannot be based solely on
circumstances as they existed years before custody would be
granted. The plain language of HRS § 571-46(a)(2) requires the
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court to consider relevant, probative evidence of the person’s
present fitness for custody.
Many of the same contemporary considerations relevant
to whether a person is presently fit and proper are also
critical in evaluating whether a custody award is in the best
interests of the child. HRS § 571-46(b) requires the family
court to consider multiple factors to determine the best
interests of the child, such as “[a]ny history of sexual or
physical abuse of a child by a parent”; “[a]ny evidence of past
or current drug or alcohol abuse”; “[t]he overall quality of the
parent-child relationship”; the physical, emotional, safety, and
educational needs of the child; “[t]he mental health of each
parent”; and “[t]he areas and levels of conflict present within
the family.” HRS § 571-46(b). These factors are not time-
restricted. For example, the family court must consider “[a]ny
history” of abuse, encompassing all possible instances of abuse,
regardless of when the abuse occurred; the family court is also
required to consider “[a]ny evidence of past or current drug or
alcohol abuse.” HRS § 571-46(b)(1)-(2), (13) (emphasis added).
Determinations of the child’s physical, emotional, safety and
educational needs are set forth in the present tense, requiring
the court to consider the child’s needs as of the time of the
custody proceeding. HRS § 571-46(b)(6)-(9).
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The best interests of the child factors must also be
read in conjunction with other provisions of HRS § 571-46.
Kauai Springs, 133 Hawaii at 163, 324 P.3d at 973 (“It is
fundamental in statutory construction that each part or section
of a statute should be construed in connection with every other
part or section so as to produce a harmonious whole.” (quoting
State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 380 (1981))).
Subsection (a) of HRS § 571-46 empowers family courts to make
and modify custody awards guided by the best interests of the
child at any time as “necessary or proper” during the minority
of the child. HRS § 571-46(a). Subsection (a)(6) of HRS § 571-
46 provides that existing custody awards “shall be subject to
modification or change whenever the best interests of the child
require or justify the modification or change.” HRS § 571-
46(a)(6). We have construed this provision to require courts to
consider changed circumstances and make a custody modification
in alignment with the best interests of the child after an
initial custody award. Waldecker v. O’Scanlon, 137 Hawaii 460,
470, 375 P.3d 239, 249 (2016). Read in pari materia, these
provisions evince the legislature’s intent that the
determination of the best interests of the child take into
consideration both past and present circumstances.
Our precedents further reflect that HRS § 571-46 calls
for a determination based on all probative evidence. In Doe,
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this court held that the family court erroneously denied the
mother a re-hearing in a custody proceeding when she was unable
to present evidence of the father’s alleged abusive behavior at
the initial custody hearing because the hearing time had
expired. 98 Hawaii at 147-48, 156, 44 P.3d at 1088-89, 1097.
The court erred, we stated, because the denial of the re-hearing
“resulted in the exclusion of testimony of witnesses bearing
upon the issue of family violence and, inferentially, the best
interest of [the c]hild.” Id. at 155, 44 P.3d at 1096.
In a more recent case, Tumaneng v. Tumaneng, the
family court precluded a mother seeking modification of a
custody decree, in light of father’s relocation and mother’s
planned relocation, from introducing evidence of alleged
domestic violence that had occurred prior to the original
custody decree but was not proffered by mother in the original
proceedings. 138 Hawaii 468, 471-72, 382 P.3d 280, 283-84
(2016). We held that the family court erred in excluding this
evidence because the information was relevant to making a
custody determination in the best interests of the child
regardless of when it occurred. Id. at 474, 382 P.3d at 286.
As in Tumaneng and Doe, the family court’s failure to
hold a further evidentiary hearing on remand resulted in the
exclusion of information relevant to determining whether W.N. is
a fit and proper person, as well as information relevant to
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ascertaining the best interests of Child. See Tumaneng, 138
Hawaii at 474, 382 P.3d at 286; Doe, 98 Hawaii at 155, 44 P.3d
at 1096. The family court did not consider any circumstances
that arose over the course of more than two years after the 2014
Hearing relating to whether W.N. was a “fit and proper person”
under HRS § 571-46(a)(2). Significantly, W.N. made an offer of
proof that he would supplement the record with evidence that he
had undergone a psychosexual evaluation and obtained a foster
care license since the 2014 Hearing. This evidence would have
directly pertained to the court’s determination of whether W.N.
was presently a fit and proper person.
Other jurisdictions have also held that when custody
of a child is at issue, a person’s present fitness must be
considered. See, e.g., Adoption of Mary, 610 N.E.2d 898, 902
(Mass. 1993) (in issue is whether parent is “presently unfit”);
Roeh v. Roeh, 746 P.2d 1016, 1018-19 (Idaho Ct. App. 1987)
(lower court erred when it granted custody to father on findings
that were three to seven years old and ignored evidence of
mother’s present fitness); In re O.J.R., 769 S.E.2d 631, 638
(N.C. Ct. App. 2015) (in termination of parental rights case,
“parents’ fitness to care for their children should be
determined as of the time of the hearing” and the “trial court
must consider evidence of changed conditions” (quoting In re
Ballard, 319 S.E.2d 227, 231 (N.C. 1984))); Larson v. Larson, 30
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Wis. 2d 291, 299, 140 N.W.2d 230, 235 (1966) (“Fitness should be
determined as of the time of the hearing and as to its future
probability.”). Additionally, when a lower court has failed to
consider whether a parent is presently fit for custody,
appellate courts in other jurisdictions have remanded the cases
for further evidentiary hearings. See, e.g., Roeh, 746 P.2d at
1021 (“Upon remand, the magistrate is empowered to take
additional evidence relating to the present fitness of the
parents in determining the custody issue.”); Armistead v.
Armistead, 322 S.E.2d 836, 838 (Va. 1984) (where court excluded
evidence relevant to best interests of child, on remand “the
chancellor should consider all the evidence already in the
record as well as any new evidence the parties may submit
relevant to the determination of [child’s] best interests”).
Based on a plain meaning reading of HRS § 571-46, an
in pari materia reading of its provisions, and precedent from
this and other jurisdictions, the family court must consider
admissible evidence probative of establishing the elements of
HRS § 571-46(a)(2), including evidence as to whether a person is
a fit and proper person at the time of the court’s
determination. If the statutory elements are satisfied, then
consideration of such evidence is essential for the family court
to make a custody award in the best interests of the child. In
this case, the passage of time since the 2014 Hearing and W.N.’s
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offer of proof that he obtained a foster care license and
underwent a psychosexual evaluation for the licensure indicates
that there was new, material evidence bearing upon whether W.N.
was a fit and proper person as of the time of the proceedings on
remand. In limiting review on remand to the 2014 Hearing
record, the family court precluded consideration of this
evidence. The family court thus erred in denying W.N.’s request
to hold a further evidentiary hearing on remand.13
B. Evidentiary Objections
In light of our disposition remanding this case for
further proceedings, we provide guidance as to other evidentiary
matters that have been raised in this appeal.
1. Exclusion of Visitation Reports on Hearsay Grounds
At the 2014 Hearing, the family court sustained
objections to the introduction of the Crosiers’ visitation
reports because the reports contained hearsay statements of
13
W.N. also contends that the family court erred in not concluding
that there was sufficient evidence in the record to support that W.N. is a
fit and proper person. Although we noted in A.A. v. B.B. that the record was
sufficient to support a finding that W.N. satisfied the elements of HRS §
571-46(a)(2), as discussed above, it was necessary for the family court to
make a determination as to whether W.N. was presently a fit and proper
person. Accordingly, we do not address whether the 2014 Hearing record would
have entitled W.N. to a de facto custody presumption when the hearing
occurred.
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Child.14 Similarly, on remand, the family court excluded the
visitation reports on hearsay grounds and because the Crosiers
testified at the 2014 Hearing.15
W.N. argued both during the 2014 Hearing and on remand
that Child’s statements in the visitation reports were not
offered for the truth of the matter asserted and thus they were
not hearsay. W.N. alternatively asserted that if Child’s
statements were hearsay, then the statements could be redacted
or could fall under the excited utterance exception. It appears
that the family court concluded that Child’s statements were
hearsay; that the statements did not qualify under a hearsay
exception; and that they could not have been redacted from the
14
Hawaii Rules of Evidence (HRE) Rule 801 provides in relevant part
as follows:
“Hearsay” is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
“Statement” is an oral assertion, an assertion in a
writing, or nonverbal conduct of a person, if it is
intended by the person as an assertion.
HRE Rule 801 (2016). HRE Rule 802 (2016) provides as follows: “Hearsay is
not admissible except as provided by these rules, or by other rules
prescribed by the Hawaii supreme court, or by statute.”
15
The record is not clear as to the reasoning underlying the family
court’s hearsay ruling on remand regarding the visitation reports. Because
S.M. did not file any new objections or a response to W.N.’s objections, we
consider only the reasoning S.M. articulated during the 2014 Hearing and the
basis given by the court in its original ruling, i.e., that the reports
contained hearsay statements made by Child.
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visitation reports in a manner that would have enabled the court
to duly consider the remaining substance of the reports.
As stated previously, it is well settled that, in
child custody cases, the paramount concern is the best interests
of the child. Doe v. Doe, 98 Hawaii 144, 155, 44 P.3d 1085,
1096 (2002). The visitation reports prepared by the Crosiers
contemporaneously with supervised visits of W.N. and Child
between June 23, 2014 and September 30, 2014 contain detailed
descriptions of W.N. and Child’s interactions, as well as
changes in Child’s behavior and eating over time. The reports
recount certain statements and exclamations made by Child during
the course of the supervised visits. Independent of their
factual accuracy, these statements demonstrate how Child
interacted with W.N. As such, Child’s statements were not
offered for the truth of the matter asserted and are not
hearsay.16
The visitation reports contain information directly
relevant to assessing whether W.N. is a fit and proper person
and whether a custody award is in the best interests of Child.
Accordingly, on remand, the family court should reexamine its
16
Additionally, the statements by Child appear to be relatively
isolated, appearing to make redaction feasible and not justifying excluding
the reports in their entirety if the remaining portions were otherwise
admissible.
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evidentiary rulings related to the admission of the visitation
reports.17
2. Limitation of Dr. Wyss’s Testimony and Exclusion of Progress
Notes on Remand
W.N. contends that the family court on remand erred
and abused its discretion in its evidentiary rulings as to Dr.
Wyss. W.N. argues that, although this court held in A.A. v.
B.B. that the limitation of Dr. Wyss’s testimony and the
exclusion of progress notes from counseling sessions with W.N.
and S.M. were harmless, the limitation and exclusion on remand
precluded the family court from considering relevant evidence as
to whether W.N. was a fit and proper person.
Following remand, the family court excluded Dr. Wyss’s
progress notes on the basis that they were cumulative.18 Hawaii
17On appeal, W.N. also argues that the visitation reports should
have been considered by the family court on remand because the family court
in the 2014 Hearing did not allow the Crosiers to refresh their recollections
with the reports. A writing may be used to refresh a witness’s recollection
when the witness’s memory has lapsed. HRE Rule 612 (2016); State v.
Espiritu, 117 Hawaii 127, 137, 176 P.3d 885, 895 (2008). A review of the
record indicates that the family court did not err in ruling that W.N. did
not establish a proper foundation for refreshing recollection because neither
Janet Crosier nor Steve Crosier clearly indicated a lapse in memory prior to
counsel’s attempt to provide the writing to the Crosiers to refresh their
recollections. Nevertheless, the family court on remand may consider
allowing further testimony from the Crosiers regarding the visitation reports
in making an informed determination of the matters before it.
18
It is noted that at the 2014 Hearing, the family court excluded
Dr. Wyss’s progress notes on a different basis--as outside the scope of his
clinical note. However, the progress notes appear to contain matters within
the scope of the clinical note. For example, the clinical note references
(continued . . .)
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Rules of Evidence (HRE) Rule 403 provides that relevant evidence
may be excluded if it is a “needless presentation of cumulative
evidence.” HRE Rule 403 (2016).19 This court has held that,
“[i]n order for evidence to be considered ‘cumulative’ for HRE
403 purposes, it must be substantially the same as other
evidence that has already been received.” State v. Pulse, 83
Hawaii 229, 247, 925 P.2d 797, 815 (1996).
The record does not indicate that the family court on
remand identified the other admitted evidence that rendered the
progress notes cumulative. Thus, it is unclear if the progress
notes constitute a “needless presentation of cumulative
evidence.” See HRE Rule 403. A review of the progress notes
indicates that they include substantial information regarding
W.N.’s anger management therapy, they reference the sexual abuse
allegations against W.N., and they contain Dr. Wyss’s clinical
opinion regarding such allegations. Thus, the progress notes
appear to bear upon issues about which Dr. Wyss did not testify
(. . . continued)
W.N.’s anger management issue and the use of cognitive-behavioral therapy
interventions to treat this challenge and indicates that W.N.’s behavior
involves “no physical aggression.”
19
HRE Rule 403 provides as follows: “Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.”
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or about which Dr. Wyss’s testimony was limited by court rulings
during the 2014 Hearing. Additionally, the family court on
remand did not address the letter that Dr. Wyss had written to
Child Welfare Services regarding the sexual abuse allegations
against W.N.20
Therefore, following this second remand, the family
court should reexamine its ruling that the progress notes are
cumulative of other evidence in the record and, if so, identify
such evidence already in the record. Provided they are
otherwise admissible, any progress notes containing probative,
non-cumulative evidence should be considered, along with
proffered testimony related to the import of such progress
notes. Finally, the family court should address the
20
In our decision in the first appeal, we concluded that although
under the circumstances any error by the family court in restricting Dr.
Wyss’s testimony or in not admitting the progress notes was harmless, we
stated that “if further evidentiary proceedings are held on remand, the
family court may revisit its ruling regarding the proffered evidence.” A.A.
v. B.B., 139 Hawaii 102, 116 n.23, 384 P.3d 878, 892 n.23 (2016). Our
determination that the exclusion of the progress notes and the limitation of
Dr. Wyss’s testimony were harmless relied upon the evidentiary record as then
presented and the legal issues considered in the first appeal. As previously
discussed, the family court’s custody determination will require
consideration of probative evidence of present circumstances, and the
relative impact of any evidentiary ruling may differ in this context. Thus,
the court should reexamine prior rulings challenged on appeal regarding
evidence that was excluded at the initial hearing.
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admissibility of Dr. Wyss’s letter to Child Welfare Services in
accordance with the principles set forth in this opinion.21
V. CONCLUSION
Based on the foregoing, the family court’s June 8,
2017 Findings of Fact and Conclusions of Law and Order is
vacated, and the case is remanded to the family court for
further proceedings consistent with this opinion to determine
whether W.N. presently meets the elements of HRS § 571-46(a)(2),
and if so, to make a custody award in the best interests of
Child.
Michael S. Zola /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Timothy Luria
Naoko C. Miyamoto /s/ Sabrina S. McKenna
Katherine M.M. Lukela
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
21
As to the remaining evidentiary objections raised on appeal by
W.N., this court previously addressed substantively similar arguments in A.A.
v. B.B. See 139 Hawaii at 116 n.23, 384 P.3d at 892 n.23. W.N. also argues
that the family court misstated the record in regard to C.N.’s testimony that
W.N. “had not changed.” However, it appears from the transcript of the 2014
Hearing that the family court did not misstate the record.
29