In re: The Guardianship of LN and BN

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-DEC-2022
10:00 AM
Dkt. 61 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF THE GUARDIANSHIP
OF LN AND BN
(FC-G NO. 17-1-0006)
AND
IN THE MATTER OF THE CUSTODY
OF LN AND BN
(FC-M NO. 19-1-0163)
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Petitioner-Appellant MK (Guardian) appeals from the
January 10, 2020 Order Denying [Guardian]'s Motion to Reconsider
Order Denying Her Petition for Custody and Order Granting Motion
for Summary Judgment (Order Denying Reconsideration) entered by
the Family Court of the Second Circuit (Family Court) in both FC-
G No. 17-1-0006 (Guardianship Case) and FC-M No. 19-1-0163
(Custody Case).1 Guardian also challenges the Family Court's
Summary Judgment Order and the Order Terminating Guardianship, as
well as the Order Denying Custody.
1
The Honorable Adrianne N. Heely (Judge Heely) presided over the
final proceedings which also resulted in the December 6, 2019 Order Granting
Motion for Summary Judgment Filed October 8, 2019 ( Summary Judgment Order) and
the December 13, 2019 Order Granting Father['s] Motion to Terminate
Guardianship of Minors (Order Terminating Guardianship) in the Guardianship
Case, and the December 13, 2019 Order Denying Petition for Custody ( Order
Denying Custody) in the Custody Case; however, the Honorable Lloyd A. Poelman
(Judge Poelman) presided over earlier proceedings stemming from a motion to
terminate guardianship in the Guardianship Case.
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I. BACKGROUND
A. The Petition for Guardianship
Respondent-Appellee Father (Father) and Respondent-
Appellee Mother (Mother) are the biological and legal parents of
two children (Children), born in 2007 and 2012. Guardian is the
Children's former maternal great aunt; she was related to the
Children by her (former) marriage to Mother's uncle.
On February 15, 2017, during a period of marital strife
between Mother and Father (who since divorced), Guardian filed
pro se a Petition for Appointment of a Guardian of the Persons of
Minors (Petition for Guardianship), in FC-G No. 17-1-0006,
requesting that she be appointed guardian of the Children on the
grounds that such appointment was necessary for the Children's
schooling, medical care, and "proper life support." Guardian
prepared one-page "Waiver of Notice and Consent to Guardianship"
papers (Waiver and Consent) for Father and Mother to sign.
Father did not check a box stating that he did not want notice of
further hearings, but the Waiver and Consent stated that Father
did not require that he be given 14 days notice; Father's Waiver
and Consent is signed. Mother's name is printed on her Waiver
and Consent; a box is checked next to a statement saying, "I do
not want to be notified of any further hearings and understand
that the Court may grant the Petition without further notice to
me." Neither Father nor Mother were represented by counsel with
respect to the Petition for Guardianship.
On April 3, 2017, a hearing was held on the Petition
for Guardianship.2 Guardian and Father appeared at the hearing;
Mother did not. The parties were placed under oath. The Family
Court first addressed Guardian and noted that there was no proof
of service or return of service filed with the Court. Guardian
stated they were served by her niece and asked if she could
"write" the submission showing service. The Court told her no,
the person who served the petition and notice of hearing should
do it. No proof of service for the Petition for Guardianship
2
Judge Poelman presided.
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and/or the notice of hearing on the petition was ever filed.3
The Family Court then spoke with Father:
THE COURT: . . . There's a waiver of notice and
consent to guardianship in the file that says that you
received a copy of the petition requesting the appointment
of [Guardian] as guardian of [the Children] and that you got
notice of today's hearing; that you consent to the
guardianship to her appointment as the guardian and waive
the requirement that you receive any further notices of any
hearings. Is that correct?
[Father]: Yes.
THE COURT: And this document says that same thing.
Is this your signature on the document?
[Father]: Yes.
THE COURT: And today you have been sworn to tell the
truth. Do you still consent to this guardianship?
[Father]: Yes.
THE COURT: And you are the natural father?
[Father]: Yes.
THE COURT: Okay. Thank you. You're welcome to stay
or you can be excused if you'd like, but you can stay. I
don't care.
The Family Court did not further address Father at the
hearing. The Court noted that it had the consent of the mother
and Mother's name. Although Mother's name is hand-printed on the
waiver of notice and consent form, which does not appear to bear
any signature, Mother does not deny that she initially consented
to the guardianship. The Court asked Guardian where she lived,
with whom, and how long the Children had been living with her, as
well as about her employment status. The Court asked Guardian
whether she was providing the Children "with their household
care, shelter, food, and taking on those responsibilities?" She
said, "Yes. The parents give as they can." The Court asked
further questions about the Guardian's taking on the financial,
educational, and health care needs of the Children. She informed
3
Neither Mother nor Father raised a direct challenge on any grounds
to the initial April 3, 2017, Order Appointing Guardian of the Minor Persons
(Order Appointing Guardian). They later explained that they consented to the
guardianship because they viewed it as, essentially, a means to help them and
the Children through a difficult period and they never understood or intended
that it could affect their custody of the Children or prevent them from
reuniting with the Children.
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the Court they have insurance through Medicaid. The Court asked
Guardian whether she believed the guardianship was in the best
interest of the Children and asked if she understood and accepted
her duties and responsibilities. She answered affirmatively.
Finally, the following exchange occurred:
THE COURT: Based upon the records of the case and the
testimony and evidence presented, the Court finds it has
jurisdiction in this matter and that all statutory
requirements have been met. The material allegations of the
petition for appointment of guardian have been proven and
all necessary consents have been obtained or notice
requirements have been filed.
Would you just briefly on the record state why it is
that there is the need for the guardianship. Are the
parents unable to take care of the children or what is the
reason for the guardianship?
[Guardian]: They are separated. The mother lives in
Lahaina and the father works. So it's hard for me to sign
educational papers for school. I need it to take them to
the doctor.
THE COURT: And they're living with you?
[Guardian]: Yes.
THE COURT: And why is it that they live with you and
not the parents?
[Guardian]: Because the mother -- the kids go to
school at -- the little girl goes to [particular school] and
the boy goes to [other school], but the mother lives in
Lahaina and dad works early in the morning.
THE COURT: And they don't live with the father or do
they?
[Guardian]: They visit on weekends.
THE COURT: They visit the father on weekends?
[Guardian]: Yes, and sometimes mom.
THE COURT: Okay. The Court finds that the subject
children are in need of -- and circumstances require a
guardian be appointed. The Court finds that the petitioner
is a fit and proper person who can provide proper care and
supervision, granting of the petition for guardianship will
serve the welfare and best interest of the subject children.
Therefore, the petition is granted. The petitioner is
appointed as guardian of the subject minor children to serve
without compensation and without bond. The guardianship
will remain in effect until the attainment of majority of
the subject minor children or further order of the Court.
(Emphasis added.)
The Order Appointing Guardian was entered, and
corresponding Letters of Guardianship of Minor Children were
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issued the same day. It does not appear that Father or Mother
were ever served with these documents, and they did not approve
them as to form.
B. The Subsequent Proceedings
On August 14, 2019, Father filed Father['s] Motion to
Terminate Guardianship of Minors (Motion to Terminate) in the
Guardianship Case. In the Motion to Terminate, Father argued,
inter alia, that the Family Court should terminate the
guardianship because it would be in the Children's best interest
to return to the custody and care of their father, that Father
had never been determined to be unfit or unable to provide a safe
and wholesome home for the Children, and that the court must
consider the preference granted to parents. Father explained, in
his memorandum in support as well as his sworn declaration, that
he consented to the guardianship because he and Mother were in
the midst of a separation and contemplating divorce. Mother had
moved to another part of the island and was unable to assist in
taking the Children to school and appointments, and Guardian was
willing to assist. The guardianship was presented to him by
Guardian as a way to make it easier for Guardian to take the
Children to school and healthcare appointments during his work
days. He attested that, during the guardianship, he maintained
contact with the Children and had parenting time on the weekends,
as well as at other times. He provided financial support and
spent holidays with the Children.
However, Guardian terminated contact between Father and
the Children when, in 2019, he informed her that the divorce was
nearly final and he wanted the Children to return to his custody
and control. Father attested that his relationship with Mother
had improved since they were officially divorced and she moved
back upcountry. When Guardian was unreceptive to his request for
the Children's return, Father told Guardian that he never thought
he would be unable to have his children returned to him. In
response to his attempts to discuss the return of the Children,
Guardian said he was giving her attitude, not being respectful,
and later, that they could talk when he could talk to her without
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being angry (he denied being angry). His last visit with the
Children was on Father's Day, two months prior to filing the
motion. He expressed appreciation for all that Guardian had
done, but pointed to his ability to care for the Children and
requested termination of the guardianship.
On August 29, 2019, Guardian filed a request to
continue to act as the Children's guardian, responding to and
contesting nearly all of the averments made in the Motion to
Terminate (Opposition to Termination). As it specifically
concerned whether it would be in the Children's best interest to
return to Father's custody, Guardian alleged, inter alia, that
Father was unstable, required a Breathalyzer device to drive, and
lived with his girlfriend who was legally married and has three
children of her own that rotate between families. Guardian
raised these concerns to dispute Father's contention that he had
not been found unfit nor his home found unstable or unwholesome
in the original appointment proceedings.
At a September 3, 2019 hearing on the Motion to
Terminate, Father and Guardian appeared with counsel and Mother
appeared pro se, stating that she supported Father's attempt to
terminate the guardianship. The Family Court stated that it
appeared to be a contested case that should be set for trial.
Guardian requested, and the parents ultimately agreed to, the
Court's appointment of Davelynn Tengan (Tengan or Fact Finder) as
a neutral "fact finder" to give the court factual information in
the form of a report after reading the filings, contacting the
parties, including Mother, and meeting with the Children. The
parties discussed whether the Family Court could order de facto
parenting time for Guardian in the event the Motion to Terminate
was granted, and the court invited Guardian to file a motion for
visitation.4
On September 17, 2019, the Family Court held a hearing
regarding setting an interim parenting schedule and establishing
that the Fact Finder's report was to evaluate whether there were
4
Guardian never filed a motion for visitation, and instead
petitioned for sole legal and joint physical custody initiating the Custody
Case. Her appeal makes no argument concerning visitation. We therefore do
not address the issue further.
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any credible allegations that either parent was currently unfit
or unable to provide a stable and wholesome home. Appearing
through counsel, Mother orally moved to terminate the
guardianship and for summary judgment, arguing that the parents
were fit parents and that they could not afford further legal
proceedings. The motions were denied without prejudice to the
filing of a dispositive motion.
On September 24, 2019, Father filed a Memorandum of Law
for the Fact Finder, reiterating the factual assertions and
arguments made in the Motion to Terminate.
On September 25, 2019, Mother filed her memorandum in
support of the Motion to Terminate. Citing Troxel v. Granville,
530 U.S. 57 (2000), Mother argued, inter alia, that "parents have
[an] absolute constitutional right to terminate the
guardianship." Mother claimed that, in the absence of a finding
that parents are unfit, the Family Court was required to grant
the Motion to Terminate.
On October 8, 2019, Mother filed her motion for summary
judgment to terminate guardianship (Motion for Summary Judgment),
which Father joined, echoing the arguments stated in her
memorandum in support of the Motion to Terminate and urging the
Family Court to immediately and summarily return the Children to
their parents.
On October 8, 2019, Guardian initiated the Custody Case
with the filing of a Petition for Custody. Therein, Guardian
alleged that — in addition to being the legally-appointed
guardian of the Children since April 3, 2017 — Guardian had de
facto custody of the Children from 2012 and 2016, respectively.5
Guardian claimed, inter alia, that the younger child had been in
Guardian's care "every weekend and eventually during the
weekdays" since April of 2012, when the younger child was an
infant, and that Guardian began to care for the older child in
June of 2016. Guardian also alleged that she "provided both
5
In her opening brief, Guardian states that the Children had been
living with her for "approximately six months" leading up to her appointment
on April 3, 2017. At the April 3, 2017 hearing on the Petition for
Guardianship, Guardian stated under oath that the Children had been living
with her since September, meaning September of 2016.
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minor children with a stable and wholesome home" and that she "is
a fit and proper person to have care, custody, and control of the
minor children."
On October 22, 2019, Tengan filed a Report of the Fact
Finder (Factfinder Report) in the Guardianship Case. The
Factfinder Report stated the charge to Tengan, as the Fact
Finder, and detailed interviews with the Children, both parents,
and Guardian. As a result of her factfinding, Tengan reported
that there were not credible allegations that either Mother or
Father were presently unfit to parent or unable to provide a
stable, wholesome home for the Children. Through discussion with
Guardian and Guardian's niece, Tengan identified the allegations
that might bear upon Mother and Father's fitness. Tengan
reported that several of the allegations were too remote in time
to weigh upon the parents' current fitness. Although the
Factfinder Report noted potential concerns regarding Father's
alcoholism and fighting between Father and Father's girlfriend,
who lives with Father, Tengan found that any concerns were
outweighed by "other positive parenting and personal
characteristics" identified in the interviews. The Factfinder
Report also stated that the Children's preference was to live
with their parents and that the Children supported Father's
assertion that he had stopped drinking.
On October 23, 2019, in the Custody Case, Father filed
an opposition to the Petition for Custody. Father argued that
Guardian was not a de facto parent, but rather that she had been
a babysitter and then a legal guardian. Accordingly, Guardian's
role was not that of a de facto parent like in the cases cited by
Guardian. On October 23, 2019, Father also filed Father's Answer
to Petition for Custody, responding to Guardian's allegations.
On October 24, 2019, in the Guardianship Case, Guardian
filed a memorandum in opposition to the Motion for Summary
Judgment, disputing Father and Mother's contention that there was
an absolute right to revoke a consensual guardianship where the
parents were not deemed unfit or unable to provide a stable or
wholesome home. Guardian asserted that the Family Court was
obligated to determine the matter based on the best interest of
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the Children and, to that end, maintained that there was a
genuine issue of material fact as to whether termination of the
guardianship was in the Children's best interest. Guardian also
asserted that, on the basis of her de facto custodianship, there
was prima facie evidence that awarding custody to Guardian was in
the children's best interest.
On October 29, 2019, a hearing was held on the
Factfinder Report, the Motion for Summary Judgment, and the
Petition for Custody. The Family Court acknowledged its receipt
of the Factfinder Report and confirmed with Tengan her finding
that neither parent is unfit or unable to provide a stable or
wholesome home. After lengthy arguments, and a Hawai#i Family
Court Rules (HFCR) Rule 56(f) request by Guardian to be allowed
to file a declaration addressing the Motion for Summary Judgment
and the Factfinder Report, the Family Court declined to rule at
that time on the parents' fitness and the legal arguments
presented by the parties. The Family Court invited the parties
to file declarations opposing or supporting fitness and continued
the hearing on the Motion for Summary Judgment. At a further
hearing the next day, which was intended to address interim
custody of the Children, the Family Court noted:
The Court does not agree with the initial portion of
the motion for summary judgment that says that the parents
can create a guardianship and terminate the guardianship if
there's a question of fact whether they are fit parents, and
that is and if there is a question of fact. If there's no
question of fact there and if the parents are fit and proper
and stable, then I agree with their position that they have
an absolute right to terminate the guardianship and take
custody again of the children, but if there is a question of
fact as to whether they are fit and stable, then that issue
would need to be tried.
So the Court under [HFCR] Rule 56(f) set deadlines
yesterday for filings of declarations and affidavits in
regard to whether there is a question of fact as to whether
or not the parents are fit or not, and the Court said
yesterday it will take the fact finder's findings into
consideration as part of that motion for summary judgment.
Now, I did review the fact finder's findings, and the
fact finder's opinion was that these parents are fit.
That's still disputed by the guardian at this point in time.
We still are in the middle of this motion for summary
judgment question.
(Emphasis added).
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The court went on to state that "while there's a
question of fact being alleged regarding the fitness of the
parents, the fact finder's findings didn't support that."
On November 5, 2019, Father submitted a declaration
supporting the Fact Finder's finding that he was fit, proper, and
able to provide a wholesome home; asserting that all of
Guardian's allegations regarding his fitness were well behind
him; and categorically denying the new allegations as hearsay and
falsehoods. Father's mother, girlfriend, and sister, and
employer also submitted declarations supporting Father's fitness
to regain custody of the Children.
Also on November 5, 2019, Guardian submitted her
declaration in opposition to the Motion for Summary Judgment,
making a series of allegations regarding, inter alia, the
conditions leading to the creation of the guardianship, Father's
history of drinking and driving, the Children's concerns about
Father's relationship with his girlfriend, and other concerns
about whether it was in the Children's best interest to be
returned to their parents.6
On November 7, 2019, Mother submitted affidavits from
Jenna Yap, Executive Director of the Keiki Aloha & Miss Hawaii
America Preliminary Scholarship Competition; Mother's mother; and
a friend of the family attesting to, inter alia, Mother's
character and fitness.
On November 12, 2019, in the Custody Case, Guardian
filed a reply memorandum to Father's opposition to the Petition
for Custody, arguing that she had asserted a prima facie case of
de facto parenting and distinguishing the case law cited by the
parents.
A hearing was held on November 19, 2019, during which
the Family Court heard arguments regarding the Motion for Summary
Judgment, Motion to Terminate, and Petition for Custody. The
court reconvened on November 27, 2019 to issue its rulings on the
Motion for Summary Judgment, Motion to Terminate, and Petition
for Custody. At the further hearing, the court recounted in
6
The declaration also contains averments pertaining to the
Children's activities and well-being while under Guardian's care.
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detail its review of the history of both the Guardianship and
Custody Cases. The court reviewed the creation of guardianship;
reviewed the authority of Fact Finder and the Factfinder Report,
cataloged the various motions and memoranda filed by the parties
and the rulings made by the prior judge, and ultimately granted
the Motion for Summary Judgment and Motion to Terminate, finding
no genuine issue of material fact that "parents are ready and
able to provide a safe, proper home for their children." The
court then stated its determinations regarding the Petition for
Custody and denied the petition on the grounds that Guardian was
not a de facto parent, acknowledging the preference it accorded
to the parents in granting termination of the guardianship.
On December 6, 2019, the Family Court entered the
Summary Judgment Order. On December 13, 2019, the Family Court
entered the Order Terminating Guardianship and Order Denying
Custody. On December 23, 2019, Guardian filed a motion to
reconsider the Order Denying Custody and the Summary Judgment
Order (Motion for Reconsideration) in the Guardianship and
Custody Cases. Mother and Father both opposed the motion, and on
January 10, 2020, the Family Court entered the Order Denying
Reconsideration.
On February 7, 2020, Guardian timely filed a notice of
appeal.
II. POINTS OF ERROR
Guardian raises three points of error on appeal,
contending that the Family Court erred in: (1) granting the
Motion for Summary Judgment and the Motion to Terminate;7 (2)
dismissing the Petition for Custody for failure to state a claim
7
Guardian's points of error do not comply with the requirements of
Hawai#i Rules of Appellate Procedure Rule 28(b)(4), including but not limited
to the failure to specifically identify the alleged error(s) and where in the
record they occurred. For example, the first point of error states "The
Family Court erred when it granted Parent's MOTION FOR SUMMARY JUDGMENT TO
TERMINATE GUARDIANSHIP in the guardianship case" with no indication of where
in the record the alleged error occurred or where it was objected to.
Although the imprecise wording used seems to challenge only the Summary
Judgment Order, and not the Order Terminating Guardianship, in the interest of
reaching the merits, to the extent that it is possible and makes sense to do
so, we will attempt to construe the related arguments in the "Argument"
section of the opening brief as applicable to both orders.
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upon which relief could be granted; and (3) denying
reconsideration.
III. APPLICABLE STANDARDS OF REVIEW
Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set
aside unless there is a manifest abuse of discretion. Thus,
we will not disturb the family court's decision on appeal
unless the family court disregarded rules or principles of
law or practice to the substantial detriment of a party
litigant and its decision clearly exceeded the bounds of
reason.
Hamilton v. Hamilton, 138 Hawai#i 185, 197, 378 P.3d 901, 913
(2016) (quoting Kakinami v. Kakinami, 127 Hawai#i 126, 136, 276
P.3d 695, 705 (2012)). Likewise, we review the denial of a
motion for reconsideration for abuse of discretion. See Doe v.
Doe, 98 Hawai#i 144, 150, 44 P.3d 1085, 1091 (2002).
We review an award of summary judgment de novo under
the same standard applied by the Family Court. See Blaisdell v.
Dep't of Pub. Safety, 119 Hawai#i 275, 282, 196 P.3d 277, 284
(2008).
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and the inferences drawn therefrom in the light
most favorable to the party opposing the motion.
Omerod v. Heirs of Kaheananui, 116 Hawai#i 239, 254-55, 172 P.3d
983, 998-99 (2007) (brackets omitted) (quoting Taniguchi v. Ass'n
of Apartment Owners of King Manor, Inc., 114 Hawai#i 37, 46, 155
P. 3d 1138, 1147 (2007)).
IV. DISCUSSION
There are three decisions at issue on appeal, the
Family Court's granting of summary judgment and termination of
the guardianship in the Guardianship Case, and the Family Court's
denial of the Petition for Custody, in which Guardian sought sole
legal and joint physical custody of the Children, in the Custody
Case.
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A. The Summary Judgment Order and the Order Terminating
Guardianship
The Petition for Guardianship identified the Children
and their parents, and stated only that Guardian's appointment
was necessary because "the children need to be enrolled in
school, need medical care, and need proper life support." The
petition did not allege that the Children were abused or
neglected in any way; nor did it allege that the parents were
unfit or unable to care for the Children. The petition sought
appointment of Guardian pursuant to Hawaii Revised Statutes (HRS)
§ 560:5-204 (2018),8 which provides in relevant part:
§ 560:5-204 Judicial appointment of guardian;
conditions for appointment. (a) A minor or a person
interested in the welfare of a minor may petition for
appointment of a guardian.
(b) The court may appoint a guardian for a minor if
the court finds the appointment is in the minor's best
interest, and:
(1) The parents consent;
(2) All parental rights have been terminated; or
(3) The parents are unwilling or unable to exercise
their parental rights.
HRS § 560:5-206 (2018) provides in relevant part:
§ 560:5-206 Judicial appointment of guardian;
priority of minor's nominee; limited guardianship. (a) The
court shall appoint as guardian a person whose appointment
will be in the best interest of the minor. The court shall
appoint a person nominated by the minor, if the minor has
attained fourteen years of age, unless the court finds the
appointment will be contrary to the best interest of the
minor.
(Emphasis added).
At the April 3, 2017 hearing on the Petition for
Guardianship, after putting Guardian under oath, the Family Court
asked her whether the parents were unable to take care of the
children or what was the reason for the guardianship. Guardian
did not say that the parents were unable or unfit to care for the
8
Contrary to certain arguments made by Guardian after Father and
Mother sought to terminate the guardianship, this guardianship was not
initiated pursuant to HRS § 560:5-202 (2018), which permits parental
appointment of a guardian effective upon the appointing parent's death or
adjudicated incapacitation, or a physician's determination that the parent is
no longer able to care for the child.
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Children, but instead responded that the parents were separated
and the father worked, and she (Guardian) needed it (the
guardianship) to sign educational papers for school and to take
the Children to the doctor. Again, there was no assertion that
the parents were neglectful or abusive or that they were
relinquishing custody to Guardian, who was the Children's long-
time babysitter, as well as an extended family member (through an
ex-spouse). The court asked why the Children lived with her, not
the parents, and she explained that the Mother lived in Lahaina,
the Children both go to schools in upcountry Maui - near where
both Guardian and Father live - and "dad" works early in the
morning. When asked, Guardian said that the Children visit
Father, and sometimes Mother on the weekends. With that, the
Family Court granted the Petition for Guardianship and entered
the form of order submitted by Guardian (which was not approved
as to form by Mother and Father), as well as the Letters of
Guardianship submitted by Guardian.
Roughly two years later, Father sought to terminate the
guardianship pursuant to HRS § 560:5-210 (2018), which provides:
§ 560:5-210 Termination of guardianship; other
proceedings after appointment. (a) A guardianship of a
minor terminates upon the minor's death, adoption,
emancipation or attainment of majority, or as ordered by the
court.
(b) A ward or a person interested in the welfare of
a ward may petition for any order that is in the best
interest of the ward. The petitioner shall give notice of
the hearing on the petition to the ward, if the ward has
attained fourteen years of age and is not the petitioner,
the guardian, and any other person as ordered by the court.
In the Motion to Terminate, Father argued, inter alia,
that it was in the best interests of the Children to terminate
the guardianship and return the Children to Father's care and
custody, and that there had never been any allegation that he was
an unfit parent or that he was unable to provide Children with a
stable and wholesome home. Father's declaration explained, inter
alia, his consent to the guardianship:
8. When [Guardian] told me about the guardianship papers
in April of 2017, it was presented to me as a way to
make it easier for her to take the children to school
and to their healthcare appointments; I didn't
understand that I was giving up custody and control of
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my children; if I had known about power of attorney I
would have just signed those for her[.]
With the Opposition to Termination, Guardian submitted
a l8-page (single-spaced) declaration asserting for the first
time that the guardianship had been necessary because, inter
alia, Father and Mother were unable to properly parent the
Children and provide a stable home, and that both Mother and
Father had alcohol or drug addictions. Guardian did not
contradict Father's statement (above) that the guardianship had
been presented by her as a means to facilitate school and
healthcare matters. Guardian did not dispute Father's averment
that Father was not informed and did not understand that consent
to the guardianship could be viewed as giving up custody and
control of the Children.
The Family Court did not address the substance of the
Motion to Terminate at the initial hearing, and instead appointed
the Fact Finder and set a date for an evidentiary hearing,
addressed that Guardian could file a motion for "de facto
parenting time," which could come into play if the guardianship
were terminated, and established a pretrial and motions schedule.
After the filing of the Petition for Custody, the Motion for
Summary Judgment, the Factfinder Report, and further submissions
of the parties and interim hearings, on November 19, 2019, the
motions came on for hearing in the Guardianship Case.9
Mother's argument in the Motion for Summary Judgment
was that, as there had never been any determination that Father
and Mother were unfit parents, and the guardianship was grounded
solely in their consent, that they had a fundamental right to
terminate the guardianship. In her memorandum in opposition,
Guardian argued that the proper inquiry under HRS § 560:5-210 was
whether the termination of the guardianship was in the Children's
best interests. At the second of two hearings at which this
motion was discussed by Judge Poelman, on October 30, 2019, the
court explained:
9
Matters at issue in the Custody Case came on for hearing at the
same time, but they will be discussed separately.
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I just wanted to briefly summarize as far as the
motion for summary judgment, thank you for all the argument
and all your presentations yesterday. I basically took that
under advisement. I didn't rule on the motion itself other
than to say it's possibly a question of fact whether the
parents are fit, and taking the motion in the light most
favorable and the prior declarations, the Court still wanted
to ask for updated declarations after the fact finder's
report from the guardian to establish whether or not there
really is a question of material fact as to whether or not
the parents are fit as parents, and what is left is a
question of fact, then, that will have to go to trial.
The Court does not agree with the initial portion of
the motion for summary judgment that says that the parents
can create a guardianship and terminate the guardianship if
there's a question of fact whether they are fit parents, and
that is and if there is a question of fact. If there's no
question of fact there and if the parents are fit and proper
and stable, then I agree with their position that they have
an absolute right to terminate the guardianship and take
custody again of the children, but if there is a question of
fact as to whether they are fit and stable, then that issue
would need to be tried.
So the Court under [HFCR] Rule 56(f) set deadlines
yesterday for filings of declarations and affidavits in
regard to whether there is a question of fact as to whether
or not the parents are fit or not, and the Court said
yesterday it will take the fact finder's findings into
consideration as part of that motion for summary judgment.
Now, I did review the fact finder's findings, and the
fact finder's opinion was that these parents are fit.
That's still disputed by the guardian at this point in time.
We still are in the middle of this motion for summary
judgment question. When I have pending matters before they
go to trial, sometimes it can take a while. I have possible
trial dates, but these might be too soon but if we don't use
these trial dates, which actually don't work because they're
before the continued motion for summary judgment, I'd like
to get on the calender the trial date in the event the
motion for summary judgment is denied and if the Court finds
there is a question of fact to go to trial regarding the
fitness of the parents.
Thus, while making it clear that he was not ruling on
the Motion for Summary Judgment, Judge Poelman indicated four
things: (1) that he rejected Mother's argument that parents can
create and then terminate a guardianship, as a matter of law,
even if there is a genuine issue of material fact as to whether
they are fit parents; (2) he agreed with Mother's argument that
to the extent that if there was no genuine of material fact as to
whether the parents are fit parents, then they have an absolute
right to terminate the guardianship and take custody of the
Children; (3) although the Fact Finder's opinion was that Father
and Mother are fit parents, Guardian disputed their fitness; and
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(4) pursuant to HFCR Rule 56(f), the court was allowing the
parties to file additional declarations or affidavits on the
issue of the parents' fitness, and would then rule on the Motion
for Summary Judgment. At the prior, October 29, 2019 hearing,
Judge Poelman further indicated that the ruling on summary
judgment would be made viewing the facts in the light most
favorable to the non-moving party, in this case, Guardian.
The matters next came on for hearing on November 19,
2019, before Judge Heely, who asked each of the parties to
address whether they had any objection to her reviewing the
record, including the details of what had transpired at the prior
hearings before Judge Poelman, and then ruling on them. No
objections were raised to proceeding as suggested by Judge Heely.
At that hearing, Guardian argued that, contrary to Judge
Poelman's characterization of the issue, the termination of the
guardianship should be based on what is in the best interest of
the Children, not on whether or not Father and Mother were fit
parents. Guardian further argued that based on the declarations
submitted, viewed in the light most favorable to Guardian, there
were genuine issues of material fact either as to whether Father
and Mother were fit and proper parents or whether it was in the
best interests of the Children to terminate the guardianship.
Father and Mother argued that this was a "simple consensual
guardianship" case where they agreed to the Family Court creating
a "de jour guardianship." In context, parents were arguing that
their consent was only effective to give Guardian certain legal
status to help Guardian care for their Children and that they
never consented to a guardianship that would impinge on their
parental rights. Guardian reiterated that the declarations
established that there was a genuine issue of material fact as to
whether Father and Mother were fit and proper parents. Judge
Heely indicated that she would continue the hearing to allow her
time to review the record, including the record of the prior
hearings as well as the declarations that were filed concerning
the summary judgment, and that court would reconvene on
November 27, 2019, for the court's rulings on all pending
matters.
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At the continued hearing on November 27, 2019, the
Family Court reviewed in part the record of the proceedings that
the court had considered, including but not limited to the Fact
Finder's investigation of the best interest of the Children
pursuant to HRS § 571-46(a)(4) (2018). The Family Court noted in
particular the Fact Finder's opinion that neither Mother nor
Father were unfit parents or lacked stability or wholesomeness.
The Family Court confirmed that the Motion to Terminate and the
Motion for Summary Judgment were separate and distinct motions.
The Family Court ruled that there was no genuine issue of
material fact and that Mother was entitled to summary judgment as
a matter of law. The Family Court then indicated that based on
its review of the entirety of the record, the court was granting
the Motion to Terminate.
On appeal, Guardian argues that the Family Court erred
in granting the Motion for Summary Judgment because there was a
genuine issue of material fact as to whether the termination of
the guardianship was in the best interest(s) of the ward(s), in
this case the Children. Guardian further argues that there was a
genuine issue of material fact as to whether it was in the best
interests of the Children to terminate the guardianship in light
of Guardian's declaration expressing her concerns regarding the
fitness of both Mother and Father. We review these issues de
novo.
As to the parents' fitness, on appeal, Guardian points
to "instances of alcohol intoxication on the part of Father" that
were "detailed" in Guardian's declaration, presumably referencing
the November 5, 2019 declaration in opposition to the Motion for
Summary Judgment, but no record citation was provided.
Guardian's November 5, 2019 declaration includes 33 numbered
paragraphs, as well as numerous subparagraphs. Paragraphs 6 and
7 of Guardian's declaration repeated hearsay reports concerning
Father "driving under the influence" two times in 2014 and again
in January 2017, two years and ten months prior to the ruling on
the Motion for Summary Judgment. Paragraph 12 states that one of
the Children said something to Guardian's niece — not Guardian —
about an alleged incident in January of 2019 related to a
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Breathalyzer device in Father's car. Guardian's November 5, 2019
declaration does not create a genuine issue of material fact as
to Father's unfitness as a parent due to instances of alcohol
intoxication. While the record as a whole, including the
Factfinder's Report, indicates that Father has a history of
problems with alcohol, it also indicates that he was sober, and
Father's history did not rise to the level of unfitness, lack of
stability, or lack of wholesomeness. We note the opportunities
given to provide further additional evidence pursuant to HFCR
Rule 56(f), and we conclude that the Family Court did not err in
concluding Guardian did not raise a genuine issue of material
fact as to Father and Mother's fitness as parents.
There is nothing in the record to indicate that the
Family Court's ruling on the Motion for Summary Judgment was
intended to address factual or legal issues beyond the parents'
fitness. Neither the oral ruling or written Summary Judgment
Order indicate any ruling on Mother's argument concerning her
fundamental constitutional rights as a parent. Guardian does not
argue otherwise on appeal. We decline to express an opinion as
to a question of law that was not ruled on by the Family Court.
As to the Order Terminating Guardianship, Guardian's
only argument on appeal is that the Family Court "applied the
wrong standard, indicating only that the parents were ready and
able to provide a safe, proper home for their children, not
whether it was in their best interests to terminate the
guardianship." This argument is without merit. The Motion to
Terminate specifically asked the Court to determine that it was
in the best interests of the Children to terminate the
guardianship, arguing, inter alia, that the court must consider
the preference granted to parents pursuant to HRS § 560:5-210 and
HRS § 571-46(a)(1) when determining the Children's best
interests. Guardian provides no citation to the record
supporting the argument that the court's ruling on the Motion to
Terminate was not based on the best interests of the Children.
Guardian makes no specific factual or legal argument on appeal —
except as to the parents' fitness, which has already been
addressed — that it was not in the Children's best interests to
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terminate the guardianship.
Accordingly, we conclude that the Family Court did not
err in entering the Summary Judgment Order. We further conclude
that the Circuit Court did not err or abuse its discretion in
entering the Order Terminating Guardianship.
B. Order Denying Custody
Guardian argues that the Family Court erred in
dismissing the Petition for Custody, purportedly for failure to
state a claim upon which relief can be granted.
As stated above, on October 8, 2019, Guardian filed the
Petition for Custody. In it, Guardian alleged that she is a fit
and proper person to have care, custody and control of the
Children, she can provide the Children with a stable and
wholesome home, and she has had de facto custody of the Children
for an extended period of time. Guardian further alleged, inter
alia, that pursuant to HRS § 571-46(a)(2) and the Hawai#i Supreme
Court's decision in A.A. v. B.B., 139 Hawai#i 102, 384 P.3d 878(2016), Guardian should be adjudged to be a "de facto custodian"
of the Children and that she should be awarded sole legal and
shared physical custody of the Children, pursuant to a parenting
plan to be proposed by her. Father and Mother raised numerous
arguments in opposition to the Petition for Custody, but the
central argument was that Guardian did not have de facto custody
of the Children, rather she was a long-time babysitter who
offered to help care for the Children during the work week, while
the parents were struggling through their separation and divorce,
and that the legal guardianship was presented to them as a way of
making it easier for her to provide additional support to the
Children, in particular with respect to school and health care
matters.
Before further examining the parties' arguments and the
Family Court's ruling on the Petition for Custody, we consider
the supreme court's decision in A.A., which addresses the
interpretation and application of HRS § 571-46(a)(2), which
permits an award of custody to a person who has had de
facto custody of a child. HRS § 571-46(a) provides in relevant
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part:
§ 571-46 Criteria and procedure in awarding custody
and visitation; best interest of the child. (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) If a child is of sufficient age and capacity to
reason, so as to form an intelligent preference,
the child's wishes as to custody shall be
considered and be given due weight by the
court[.]
A.A. involved a same-sex couple, who jointly decided to
adopt and raise a child who was the biological grandchild and
legal adoptive child of B.B. 139 Hawai#i at 104, 384 P.3d at
880. They lived together as a family unit, along with B.B.'s
teenage son, jointly sharing all parental care, duties, custody,
and responsibilities. Id. They jointly planned for A.A. to also
adopt the child, but that did not occur. Id. When they
separated, they entered into a written 50/50 co-parenting
agreement, which B.B. later sought to revoke. Id. A.A.
petitioned for joint custody pursuant to the de facto custody
provision in HRS § 571-46(a)(2). Id.
The supreme court emphasized that the over-arching
consideration in child custody matters is the best interests of
the child, and that the family courts possess broad discretion as
to that determination. Id. at 106, 384 P.3d at 882. The court
noted that pursuant to HRS § 571-46(a)(1), custody "should be"
awarded to either or both parents, according to the best
interests of the child, but that pursuant to the de facto custody
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provision in HRS § 571-46(a)(2), custody "may be" awarded to
someone else, if that award serves the best interests of the
child. 139 Hawai#i at 106, 384 P.3d at 882. In examining HRS
§ 571-46(a)(2), the supreme court stated:
Although "de facto custody" is not defined, we interpret it
to mean sole or shared physical custody in combination with
an assumption of incidents of legal custody enumerated in
HRS § 571-2, which include "the duty to protect, train, and
discipline the minor and to provide the minor with food,
shelter, education, and ordinary medical care." In other
words, de facto custody is consistent with a parental role.
Id. at 107, 384 P.3d at 883.
Later in its opinion, in conjunction with one of the
court's many references to B.B.'s expansive treatment of A.A. as
a co-parent, voluntarily sharing physical custody and parenting
decisions and duties, the supreme court clarified that:
Our decision [regarding whether B.B.'s protected parental
rights would be violated by sharing custody with A.A.] is
based on the circumstances presented by this case. We note
that a parent does not relinquish his or her parental rights
by merely relying on childcare assistance from others . As
stated, de facto custody is not established by mere physical
custody of a child. Nonetheless, we decline to adopt a
bright line rule regarding the extent of a parent's
protected liberty interest as "the constitutional
protections in this area are best 'elaborated with care'" on
a case-by-case basis.
Id. at 114 n.18, 384 P.3d at 890 n.18 (emphasis added).
The supreme court identified the three statutory
factors by which a person may establish a prima facie case of de
facto custody, that the person seeking custody is (1) a fit and
proper person, (2) who has had de facto custody of the child, (3)
in a stable and wholesome home. Id. at 107, 384 P.3d at 883.
However, the court again noted the family court's ultimate
discretion in determining the custody award based on the best
interests of the child. Id. Due to the insufficiency of the
family court's findings concerning whether A.A. established a
prima facie case, the supreme court "express[ed] no opinion" on
the issue but nevertheless noted that the record was sufficient
to support a finding of de facto custody because B.B. "shared all
parental care, duties, and responsibilities with respect to Child
with A.A. from [early infancy in] October 2011 to October 2013
and then continued to have actual joint custody of Child until
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April 2014, pursuant to the written co-parenting agreement."10
Id. at 107 n.8, 384 P.3d at 883 n.8.
As argued by Guardian, at the October 30, 2019 hearing,
Judge Poelman described Father's opposition to the Petition for
Custody "as a kind of a Rule 12(b)(6) motion saying that there's
a failure to state a . . . claim upon which relief can be granted
. . . ." The judge invited Guardian to file an opposition or
response to that argument prior to the next hearing, which
Guardian did. At the next hearing, held on November 19, 2019,
Father argued to Judge Heely that:
The petition should be denied because there is no de facto
parenting here. There is none of that. She had de jour
guardianship. They have never lived together. They have
never created a parent-like relationship. She's trying to
come in on [a custody case] by claiming because she had
guardianship of the children, she created a de facto
parenting, and under all the facts that is not true, your
Honor. She can't even make that borderline threshold
argument.
In other words, notwithstanding Judge Poelman's
characterization, Father argued that the facts did not support a
finding of de facto parenting. Guardian argued that pursuant to
A.A., Guardian was authorized to assert that she had a de facto
parental relationship with the Children, and that she satisfied
the prima facie criteria, recognizing that making a prima facie
case did not entitle her to custody. Guardian's counsel stated
that Guardian was seeking an evidentiary hearing, but then said
that with respect to the Custody Case, based on Judge Poelman's
determination that Father's opposition was like an HFCR 12(b)(6)
10
As discussed below, in this case, the lack of findings of fact
concerning whether Guardian established a prima facie case of de facto custody
under HRS § 571-46(a)(2), as well as findings and conclusions concerning the
ultimate issue of the best interests of the Children, render the record
insufficient for appellate review of the Order Denying Custody. We express no
opinion, but nevertheless note that there are numerous distinctions between
the case at bar and A.A., and the record tends to support a finding that
Guardian did not have de facto custody of the Children. Here, there is no
evidence in the record that the parents intended to share custody or co-parent
with Guardian. On the contrary, she was the trusted, long-time babysitter who
offered to assist the parents and the Children get through a stressful period
during the marital breakup. As she testified under oath at the initial
guardianship proceeding, the "consensual" guardianship was to facilitate
school and doctor appointments. Parents never agreed or gave any sort of
informed consent to joint custody or a relinquishment or diminution of their
parental rights. There is no evidence that the Children ever considered
Guardian to be a parent, as opposed to a valued caregiver.
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motion, the court would not need to take evidence to decide the
case.
At the next (and final) hearing, the Family Court
(Judge Heely) stated the court's ruling that the Petition for
Custody was denied. When challenged by Guardian's counsel that
"Judge Poelman ruled this was a 12(b)(6) motion, has to be
decided on the pleadings, not on the facts[,]" the court noted
that it relied on the pleadings, including Father's opposition
asserting that Guardian was not a de facto parent. The Family
Court noted that Father and Mother had been the parents for nine
years plus and they have rights, and the court questioned why
Guardian did not file a petition for custody during the pendency
of the guardianship. Guardian's counsel responded, "She didn't
file it before because she wasn't a de facto parent yet." The
court said "exactly . . . she's not a de facto parent and she --
the Court ruled that she is not a de facto parent . . . ."
While the Family Court orally ruled that Guardian was
not a de facto parent, the court did not enter findings of fact
and conclusions of law supporting that ruling. Indeed, both
Family Court judges seemed to indicate that the court would be
ruling on the Petition for Custody as a matter of law, but it
appears that the Family Court ultimately concluded that Guardian
did not establish the facts necessary for a prima facie case of
de facto custody under HRS § 571-46(a)(2).
In light of this record, we must conclude that the
record is insufficient for appellate review of the Order Denying
Custody. The Family Court should have, at a minimum, made
findings and conclusions with regard to whether Guardian
satisfied the de facto custody test of HRS § 571-46(a)(2). See
A.A., 139 Hawai#i at 108, 384 P.3d at 884. Further, it appears
that some sort of evidentiary hearing was necessary to make such
findings and conclusions, as we cannot conclude, as a matter of
law, that Guardian cannot petition for custody pursuant to HRS
§ 571-46(a)(2). As it is necessary to remand this case to the
Family Court, we note that even if the Family Court were to find
and conclude that Guardian had de facto custody of the Children
for some period of time, and satisfied the other two statutory
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factors, the establishment of a prima facie entitlement to
custody is not dispositive. The Family Court must make the
ultimate determination as to the best interests of the Children
in granting or denying Guardian's petition, which may need to be
supported by additional findings.
C. The Order Denying Reconsideration
Guardian provides no discernible argument on appeal
that she presented new evidence and/or arguments that were not or
could not have been presented during the earlier adjudicated
motions in the Guardianship Case. See, e.g., Tagupa v. Tagupa,
108 Hawai#i 459, 465, 121 P.3d 924, 930 (App. 2005) ("The purpose
of a motion for reconsideration is to allow the parties to
present new evidence and/or arguments that could not have been
presented during the earlier adjudicated motion." (brackets
omitted)). As we have concluded that the record is insufficient
to review the Family Court's Order Denying Custody, we need not
reach the issue of whether the Family Court abused its discretion
in denying reconsideration of that order.
V. CONCLUSION
For these reasons, the Family Court's December 13, 2019
Order Terminating Guardianship is affirmed. The Family Court's
December 13, 2019 Order Denying Custody is vacated, and the
Custody Case is remanded to the Family Court for further
proceedings consistent with this Memorandum Opinion.
DATED: Honolulu, Hawai#i, December 5, 2022.
On the brief: /s/ Katherine G. Leonard
Presiding Judge
Benard M. Herren,
Valerie B. McKelvey
(Cain & Herren, ALC), and /s/ Keith K. Hiraoka
Brianne L.O. Wong Leong Associate Judge
(Wong Leong Cuccia, LLLC)
for Petitioner-Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
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