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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2022
08:01 AM
Dkt. 95 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF THE CONSERVATORSHIP OF JANE DOE
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(C. NO. 16-1-0028)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Respondent-Appellant Barbara J. Brodhead (Appellant)1
appeals from the March 8, 2017 Order Granting Petition for
Appointment of Conservator filed May 5, 2016 (Order Appointing
Conservator), and the June 30, 2017 Judgment on Order Granting
Petition for Appointment of Conservator filed May 5, 2016
(Judgment), filed by the Circuit Court of the First Circuit
(Probate Court).2
On appeal, Appellant contends that the Probate Court:
(1) exceeded its authority in a conservatorship proceeding when
it authorized the Special Conservator to oversee her healthcare
and medical decisions, terminating her long-term caregiver and
hiring others against her wishes; (2) abused its discretion when
it appointed a Special Conservator without clear and convincing
evidence of an impairment that prevented Appellant from making
her own financial decisions; and (3) abused its discretion when
1
In the Opening Brief, Appellant requests that her name be kept
confidential. The record does not contain any order granting such a request.
Nor has Appellant filed any motion or cited any authority supporting this
request on appeal, and we do not address it.
2
The Honorable Derrick H.M. Chan entered the Order, and the
Honorable Virginia Lea Crandall entered the Judgment.
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it appointed a Special Conservator without first finding by a
preponderance of evidence that her property would be wasted or
dissipated unless she was removed from its management, and also
erred when it did not determine that her property would be
dissipated or wasted without management.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
address Appellant's contentions as follows, and we vacate and
remand.
A Petition for Appointment of Conservator (Petition)
was filed on May 5, 2016, by Petitioner-Appellee Thomasene
Brodhead and Interested Person-Appellee Virginia La Pierre, who
are Appellant's siblings (collectively, Sisters), seeking the
appointment of a conservator under Hawaii Revised Statutes (HRS)
§ 560:5-401(2)(2006 & Supp. 2016).3 Appellant had no children,
and Sisters filed the Petition out of concern for the alleged
neglect, isolation, and alleged improper influence and financial
exploitation of Appellant by her caregiver and friend, Madeline
Morales (Caregiver). The Petition requested, among other things,
the appointment of Andrew D. Smith, Esq., (Smith) as Conservator
to assist Appellant with the management of her business and
financial interests, and to protect Appellant's interests against
undue influence or encumbrance by others.
3
HRS § 560:5-401 provides in relevant part: "Upon petition and
after notice and hearing, the court may appoint a limited or unlimited
conservator or make any other protective order provided in this part in
relation to the estate and affairs of . . . (2) Any individual[.]"
Subsections (A) and (B) require the following proof to appoint a conservator:
(A) By clear and convincing evidence, the individual
is unable to manage property and business affairs
effectively because of an impairment in the ability to
receive and evaluate information or to make or communicate
decisions, even with the use of appropriate and reasonably
available technological assistance or because of another
physical, mental, or health impairment. . .; and
(B) By a preponderance of evidence, the individual
has property that will be wasted or dissipated unless
management is provided or money is needed for the
support, care, education, health, and welfare of the
individual. . . .
2
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Following the completion of a July 29, 2016 report by a
court-appointed Kokua Kanawai4 to review the matters raised in
the Petition, the Probate Court appointed Smith to serve as
Special Master,5 to prepare a written report regarding the
appropriateness of a conservatorship. Specifically, the August
30, 2016 Order Appointing Special Master provided:
IT IS FURTHER ORDERED that the Special Master shall prepare
a written report of his findings to the Court with respect
to [Appellant's] understanding of her financial situation
and options, her ability to exercise her rights accordingly,
and the existence (if any) of an impairment in [Appellant's]
ability to receive and evaluate information or make or
communicate decisions regarding management of her property
and business affairs, within the meaning of HRS § 560:5-
401(2)(A).
The Special Master was also to report on the existence, if any,
of undue influence or financial exploitation of Appellant.
Upon completion of his investigation, the Special
Master filed his February 2, 2017 report recommending a limited
special conservatorship. The report addressed, among other
things, Appellant's physical health, mental condition, proposed
care plan, and her finances. The report included the Special
Master's conclusion regarding undue influence and financial
exploitation of Appellant. However, the report did not address
whether there was any "impairment in [Appellant's] ability to
receive and evaluate information or make or communicate decisions
4
"'Kokua kanawai' means an individual appointed by a court who has
the role and authority granted under rule 113 of the Hawaii probate rules."
HRS § 560:5-102 (2006). Hawai#i Probate Rules (HPR) Rule 113 provides:
ROLE AND AUTHORITY OF KOKUA KANAWAI. A Kokua Kanawai
appointed in a protective proceeding shall serve as .
. . an extension of the court to conduct an
independent review of the situation, to interview the
respondent and the person seeking to be appointed
conservator or guardian, and to report its findings
and recommendations to the court[.]
5
The Special Master was appointed pursuant to HPR Rule 28(a), which
states:
The court may appoint a master to review any petition or
dispute before the court and to report the recommendations
of the master to the court. The master shall serve as a
representative of the court and shall be a person who has no
conflict of interest with any party or issue in the
proceeding.
3
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regarding management of her property and business affairs, within
the meaning of HRS § 560:5-401(2)(A)," as directed in the Order
Appointing Special Master.
Following a February 16, 2017 hearing on the Petition,
the Probate Court filed the March 8, 2017 Order Appointing
Conservator, which, among other things, appointed Smith to serve
as Special Conservator, and stated in pertinent part:
A. The Petition for Appointment of Conservator is
granted, subject to the recommendations of the Special
Master contained in the Special Master's Report filed
on February 2, 2017, which are adopted and approved,
and set forth herein, and subject to modification at a
later date as set forth herein;
B. The appointment of the Special Master shall be
terminated and the Special Master shall be discharged
from further duties and responsibilities as Special
Master[;]
C. Jurisdiction and venue are proper;
D. A basis exists for a special conservatorship;
E. The appointment of a special conservator is in the
best interest of the Protected Person;
F. Andrew Smith, Esq. ("Smith") is qualified to serve as
Special Conservator;
G. Smith is appointed as Special Conservator without
bond;
H. The Special Conservator shall file with the Court
within thirty (30) days of entry of this Order, a proposed
budget of income and expenses for the Protected Person,
pursuant to Rule 108 of the Hawai#i Probate Rules, and a
detailed inventory of the estate subject to the
conservatorship, together with an oath or affirmation that
the inventory is believed to be complete and accurate as far
as information permits;
. . . .
(Emphases added). The Order Appointing Conservator did not
contain factual findings or any language citing to and
determining that the statutory criteria for appointment of a
conservator under HRS § 560:5-401(2)(A) and (B) had been met.
On June 30, 2017, the Probate Court entered Judgment on
the March 8, 2017 Order. This timely appeal followed.6
6
Appellant's Notice of Appeal, filed July 26, 2017, appealed from
the June 30, 2017 Judgment on Order Granting Petition for Appointment of
(continued...)
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The Hawai#i Supreme Court has held that "it is not the
function of the appellate court to conduct its own evidentiary
analysis" where the probate court did not issue factual findings.
In re Elaine Emma Short Revocable Living Tr. Agreement, 147
Hawai#i 456, 465, 465 P.3d 903, 912 (2020).7 "[T]he absence of
factual findings by the probate court" does not enable an
appellate court "to meaningfully review the basis of the probate
court order . . . ." Id. at 459, 465 P.3d at 906.
Appellant contends the record does not contain clear
and convincing evidence of Appellant's inability to effectively
manage her property and business affairs pursuant to HRS § 560:5-
401(2)(A). Appellant argues that the statute requires "clear and
convincing evidence" that Appellant cannot manage her property
and business affairs effectively because of an impairment in her
ability to receive and evaluate information or to make or
communicate decisions, or because of another physical, mental, or
health impairment. Appellant further argues that the Probate
Court failed to "enter any findings of fact which reflected the
proof standards in the statute." Appellant's contentions have
merit.
HRS § 560:5-401(2)(A) requires proof of the
individual's impaired ability "to manage property and business
affairs effectively" by clear and convincing evidence. "[T]he
clear and convincing evidence standard has been recognized as a
6
(...continued)
Conservator filed May 5, 2016. An Order Affirming and Supplementing Order
Granting Petition for Appointment of Conservator filed May 5, 2016, signed by
Judge Crandall, was also filed on June 30, 2017. While no Judgment was filed
as to the subsequent Order, we construe this appeal to include this Order.
See Ueoka v. Syzmanski, 107 Hawai#i 386, 396, 114 P.3d 892, 902 (2005) ("An
appeal from a final judgment brings up for review all interlocutory orders not
appealable directly as of right which deal with issues in the case.")
(citation and internal quotation marks omitted)). The June 30, 2017 order
also did not contain any factual findings or language citing to and
determining that the statutory criteria under HRS § 560:5-401(2)(A) and (B)
had been met.
7
In In re Elaine Emma Short, the Hawai#i Supreme Court held "that
the absence of factual findings by the probate court did not enable the ICA to
meaningfully review the basis of the probate court order to modify the trust
and that the ICA's reliance on selective extrinsic evidence was improper."
147 Hawai#i at 459, 465 P.3d at 906. The Court vacated the ICA's judgment and
the probate court's order and judgment, and remanded the case for further
proceedings consistent with its opinion. Id.
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more exacting standard that has been applied to a wide variety of
civil cases where for policy reasons the courts require a higher
than ordinary degree of certitude before making factual
findings." Iddings v. Mee-Lee, 82 Hawai#i 1, 13, 919 P.2d 263,
275 (1996) (brackets, internal quotation marks, and citations
omitted). Clear and convincing evidence "is that degree of proof
which will produce in the mind of the trier of fact a firm belief
or conviction as to the allegations sought to be established, and
requires the existence of a fact be highly probable." Id.
(citations omitted).
Here, the Probate Court specifically ordered the
Special Master to address the criteria under HRS § 560:5-
401(2)(A) in the report. While the Special Master's report
addresses Appellant's physical health, mental condition and
finances, the report did not specifically determine or express an
opinion regarding Appellant's physical or mental "impairment"
within the meaning of the statute.8
The Order Appointing Conservator was based on the
Special Master's report, that the Probate Court "adopted and
approved" as the basis for its ruling. The order did not contain
findings addressing the statutory requirements and standard of
proof for the appointment of a conservator under HRS § 560:5-
401(2)(A) and (B).
While HRS § 560:5-401(2)(B) (dealing with protection
necessary to protect property or to provide needed money)
contains requirements that must be proved by a preponderance of
the evidence standard, the requirements in subsection (2)(A) are
subject to a higher clear and convincing standard of proof. We
conclude that there is ambiguity in the record before us, as to
which type of impairment the Probate Court found in the record
provided, and whether that impairment was established by a clear
and convincing standard of proof under HRS § 560:5-401(2)(A).
Without findings of fact, we are unable to meaningfully review
8
While the Special Master's report addresses the subject matter of
the second prong of the statute, HRS § 560:5-401(2)(B), and supplies evidence
to support the (2)(B) requirement by a preponderance of the evidence, there
was no express finding or determination by the court that subsection (2)(B)
was satisfied.
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the Probate Court's order, and an appellate court may not discern
from the evidence whether and how this higher standard of proof
was met, when it is not the factfinder. See In re Elaine Emma
Short, 147 Hawai#i at 459, 465 P.3d at 906. The record should
reflect the Probate Court's determination whether the statutory
requirements and standard of proof have been met, or not, for
both HRS § 560:5-401(2)(A) and (B). Given our resolution here,
it is not necessary to address Appellant's remaining contentions.
Therefore, IT IS HEREBY ORDERED that the (1) March 8,
2017 Order Granting Petition for Appointment of Conservator filed
May 5, 2016; (2) the June 30, 2017 Judgment on Order Granting
Petition for Appointment of Conservator filed May 5, 2016; and
(3) the June 30, 2017 Order Affirming and Supplementing Order
Granting Petition for Appointment of Conservator filed May 5,
2016 all filed by the Circuit Court of the First Circuit, are
vacated. This matter is remanded for further proceedings
consistent with this Summary Disposition Order.9
DATED: Honolulu, Hawai#i, January 31, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Mark M. Murakami
(Damon Key Leong Kupchak /s/ Clyde J. Wadsworth
Hastert) Associate Judge
for Appellant Jane Doe
/s/ Karen T. Nakasone
Thomas E. Bush Associate Judge
(Thomas Bush Law Office, LLLC)
for Plaintiff-Appellee
Thomasene Brodhead and
Interested Person Virginia La
Pierre
9
The judges who presided over this matter are no longer available
to enter findings of fact, and thus, we remand the case to the Probate Court
for further proceedings consistent with this order. See In re Elaine Emma
Short, 147 Hawai#i at 471 n.30, 465 P.3d at 918 n.30 ("Because the probate
judge who initially presided over this case is unavailable to enter findings
of fact, we . . . remand the case to the probate court for further proceedings
consistent with this opinion.").
7