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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-FEB-2023
07:49 AM
Dkt. 104 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF EAC
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(Case Nos. FC-S No. 19-1-0012 and 2GD211000054)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Appellant EC (Father) and Cross-appellant UH (Mother)
appeal from the "Order Appointing Guardian of the Person of the
Minor" entered by the Family Court of the Second Circuit on
June 16, 2022.1 For the reasons explained below, we affirm the
Order Appointing Guardian.
Father and Mother are the biological parents of EAC
(Child). Child was taken into protective custody by the Maui
Police Department shortly after birth. The State of Hawai#i
Department of Human Services (DHS) filed a petition to place
Child in temporary foster custody on October 2, 2019 (the
Temporary Foster Custody Case). A hearing was set for October 4,
2019.
Father and Mother, both self-represented, attended the
October 4, 2019 hearing. The family court appointed separate
counsel for Father and Mother. Another hearing was held on
1
The Honorable Michelle L. Drewyer presided.
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October 15, 2019. Father and Mother appeared, each with counsel.
DHS was awarded continuing temporary foster custody over Child.
A further hearing was set for November 19, 2019.
Father and Mother appeared at the November 19, 2019
hearing with their respective counsel. DHS social worker
Christina Satyo Dosland also appeared at the hearing. Father and
Mother stipulated to foster custody and agreed to participate in
the services recommended by DHS. Foster custody of Child was
awarded to DHS. Father requested, and the family court ordered,
"an ICPC2 referral for [MC, Child's Grandfather], who's in
Albuquerque, New Mexico." A further hearing was set for
December 31, 2019.
Father and Mother appeared at the December 31, 2019
hearing with their respective counsel. The family court approved
the DHS "Family Service Plan" dated December 31, 2019, signed by
Dosland. A periodic review hearing was set for April 28, 2020.
The periodic review hearing was continued to July 7, 2020,
apparently because of the COVID-19 pandemic.
On June 23, 2020, Child's guardian ad litem (GAL)
reported that Father and Mother "abruptly left Maui for New
Mexico several weeks ago without notifying anyone involved in
this case. It is unknown if Mother and Father are currently
engaged in any services."
Dosland filed a "Safe Family Home Report" on June 29,
2020. Father filed a position statement on July 2, 2020. Father
stated that Child "should be in a legal guardianship with
paternal [Grandfather]" in New Mexico.
The July 7, 2020 hearing was conducted by Webex.
Father and Mother appeared with their respective counsel.
Dosland and Grandfather also appeared. Dosland reported that
Father and Mother had moved to "New Mexico slash Texas and they
2
ICPC is an acronym for the Interstate Compact on Placement of
Children. ICPC provides for the legal transport of a child between states in
a foster or adoption placement. See Hawaii Revised Statutes Chapter 350E
(2015).
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are not planning on returning . . . so we have started an ICPC
request for a home study[.]" The family court approved DHS
Family Service Plans (one for Father, one for Mother) dated
July 7, 2020, each signed by Dosland. A permanency hearing was
set for November 17, 2020. The family court also ordered a
"STATUS RE: ICPC."
The November 17, 2020 hearing was conducted by Webex.
Father and Mother appeared with their respective counsel.
Dosland and Grandfather also appeared. The family court ordered:
"Once the ICPC is approved, [Child] is authorized to travel to
New Mexico to[] Paternal Grandfather[.]" A continued hearing on
ICPC status was set for December 15, 2020.
The December 15, 2020 hearing was conducted by Webex.
Father and Mother appeared with their respective counsel.
Dosland and Grandfather also appeared. Father and Mother
stipulated to the DHS "Permanent Plan" dated December 15, 2020,
and waived the requirement of a motion. The family court
approved the Permanent Plan. A review hearing was set for
June 15, 2021.
An ICPC report was filed on April 9, 2021. Child had
been placed in relative foster care with Grandfather in New
Mexico on March 17, 2021.
On June 2, 2021, the GAL requested, and the family
court issued, an order authorizing "the CASA Program in
Albuquerque, New Mexico to conduct courtesy home visits to ensure
that the well-being of [Child] is satisfactory in the child's
best interest[.]"
On June 8, 2021, the GAL recommended that Child
"remain[] in permanent custody of DHS with subsequent goal of
legal guardianship/adoption to her [Grandfather]."
At the June 15, 2021 hearing, DHS permanency social
worker Anne Fitzpatrick explained that Child was placed with
Grandfather on March 17, 2021, and needed to be in placement for
six months under ICPC rules. She reported that "New Mexico is
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supervising, providing supervisory visits." The family court set
a further hearing for September 14, 2021.
On September 1, 2021, the GAL reported that Child "is a
happy and healthy baby girl who is doing well in the home of her
paternal grandfather. Guardianship of [Child] to [Grandfather]
is in her best interest." The GAL recommended continued foster
custody until guardianship to Grandfather was granted.
The September 14, 2021 hearing was continued to
September 28, 2021 by stipulation. The September 28, 2021
hearing was conducted over Zoom. Father and Mother appeared with
their respective counsel. Fitzpatrick also appeared. The family
court continued the Permanent Plan and set a further hearing for
October 26, 2021.
On October 13, 2021, DHS filed a petition in a separate
proceeding to appoint Grandfather as guardian of the person for
Child (the Guardianship Case).
The October 26, 2021 hearing in the Temporary Foster
Custody Case was conducted over Zoom. Father and Mother appeared
with their respective counsel. Fitzpatrick and Grandfather also
appeared. The family court set a further permanency hearing for
November 9, 2021.
The November 9, 2021 hearing was conducted over Zoom.
Father and Mother appeared with their respective counsel.
Fitzpatrick and Grandfather also appeared. Over Father's
objection, the court set a status hearing for January 25, 2022,
and a contested guardianship hearing for February 11, 2022.
On January 24, 2022, Proud Moments filed a treatment
request and a diagnostic evaluation and individualized service
plan after Child was diagnosed with autism spectrum disorder.
The January 25, 2022 hearing was conducted over Zoom.
Father and Mother appeared with their respective counsel.
Fitzpatrick also appeared. The February 11, 2022 contested case
hearing was continued to March 18, 2022.
On March 4, 2022, Mother filed a motion to set aside
her stipulation to the DHS Permanent Plan and Father filed a
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motion to withdraw his stipulation to jurisdiction and to dismiss
the Temporary Foster Custody Case or, in the alternative, for
reunification with Child. Both motions were denied. Father and
Mother have not appealed from the order denying the motions.
A consolidated contested case hearing for the Temporary
Foster Custody Case and the Guardianship Case was held on
March 18, 2022. The family court took judicial notice of the DHS
Family Service Plans dated December 31, 2019, and July 7, 2020,
all of which had been signed by Dosland. The family court heard
testimony from Father, Mother, Grandfather,3 the GAL, and
Fitzpatrick (among others), but not from Dosland. The family
court entered separate but identical findings of fact and
conclusions of law in each case on May 27, 2022.
On June 15, 2022, the family court entered an order
terminating jurisdiction in the Temporary Foster Custody Case
based upon the successful guardianship in the Guardianship Case.
No appeal was taken from that order. In the Guardianship Case,
the family court entered the Order Appointing Guardian and issued
Letters of Guardianship to Grandfather on June 16, 2022. These
appeals followed.4
[T]he family court possesses wide discretion in making its
decisions and those decision[s] will not be set aside unless
there is a manifest abuse of discretion. Thus, we will not
disturb the family court's decisions 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.
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)
(citation omitted).
3
Father, Mother, and Grandfather participated over Zoom.
4
Father's notice of appeal was filed on June 12, 2022, and Mother's
notice of cross-appeal was filed on June 13, 2022, after the family court
announced its decision to appoint Grandfather as Child's guardian, but before
entry of the Order Appointing Guardian. We consider the notices of appeal and
cross-appeal to have been filed immediately after entry of the Order
Appointing Guardian. See Hawai#i Rules of Appellate Procedure, Rule 4(a)(2).
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I.
Father contends that the family court abused its
discretion by allowing Fitzpatrick to testify during the
contested case hearing, rather than Dosland (who prepared DHS
reports about which Fitzpatrick testified). Although not stated
in a point of error, Mother also argues that she was not able to
cross-examine Dosland about the Family Service Plans because
Dosland did not testify at the contested case hearing.
Father and Mother both rely upon Hawaii Revised
Statutes (HRS) § 587A-18(d). The statute provides, in relevant
part:
(c) The department [of human services] or other
authorized agencies shall submit to the [family] court each
report, in its entirety, pertaining to the child or the
child's family that has been prepared by a child protective
services multidisciplinary team or consultant.
(d) A written report submitted pursuant to this
section shall be admissible and relied upon to the extent of
its probative value in any proceeding under this chapter,
subject to the right of any party to examine or cross-
examine the preparer of the report.
HRS § 587A-18 (2018). The statute gave Father and Mother the
right to examine or cross-examine Dosland, but it did not require
that DHS call Dosland as a witness in lieu of Fitzpatrick. See
In re TC, No. CAAP-XX-XXXXXXX, 2021 WL 6054831, *4 (Haw. App.
Dec. 20, 2021) (SDO) (noting that "admission of a report into
evidence under HRS § 587A-18(d) is not contingent upon actual
cross examination of the preparer of the report").
DHS listed Fitzpatrick, not Dosland, on its witness
list for the contested case hearing. The record does not
indicate that Father or Mother subpoenaed Dosland or otherwise
moved to compel her attendance to testify at the contested case
hearing. See In re Doe, 77 Hawai#i 109, 116, 883 P.2d 30, 37
(1994) ("[H]aving failed to file a motion to compel Braendlein's
testimony at trial, despite prior notice to Mother by DHS that
Braendlein would not be called as a witness, Mother effectively
waived her right to cross examine Braendlein."). The family
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court does not abuse its discretion by not requiring testimony
from a witness who was not listed, called, subpoenaed, or
otherwise required to appear at the contested case hearing.
Fitzpatrick testified that she worked for DHS as a
permanency social worker. The family court granted DHS's request
to qualify Fitzpatrick as an expert witness under HRS § 587A-19.5
As an expert witness, Fitzpatrick was allowed to testify about
her opinions on child protective or child welfare services. See
Hawaii Rules of Evidence (HRE) Rules 702 and 703. Father argues
that Fitzpatrick's opinions were based upon inadmissible hearsay
— statements contained in Dosland's reports and other DHS
documents in Child's case file. Under HRE Rule 703, however: "If
of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence." See also
Swink v. Cooper, 77 Hawai#i 209, 215, 881 P.2d 1277, 1283 (App.
1994). In this case, the DHS records were admissible under HRS
§ 587A-18. The family court did not err by allowing Fitzpatrick
to testify.
II.
Mother challenges the family court's findings of fact
(FOF) nos. 16, 26, and 27, and conclusions of law (COL) nos. 3,
4, and 6, and Father also challenges COL nos. 3 and 6.
The label of a finding of fact or a conclusion of law
does not determine the standard of review. City & Cnty. of
Honolulu v. Honolulu Police Comm'n, 151 Hawai#i 56, 62, 508 P.3d
5
HRS § 587A-19 (2018) provides:
A person employed by the department [of human services] as a
social worker in the area of child protective services or
child welfare services shall be presumed to be qualified to
testify as an expert on child protective or child welfare
services. Any party may move the court to qualify a person
employed by the department as a social worker in the area of
child protective services or child welfare services called
to testify as an expert on child protective or child welfare
services.
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851, 857 (App. 2022) (citing Crosby v. State Dep't of Budget &
Fin., 76 Hawai#i 332, 340, 876 P.2d 1300, 1308 (1994)). The
question whether a determination is a finding of fact or a
conclusion of law is a question of law; the accuracy of the label
given by the trial court is freely reviewable by an appellate
court. Kilauea Neighborhood Ass'n v. Land Use Comm'n, 7 Haw.
App. 227, 229, 751 P.2d 1031, 1034 (1988).
The family court's findings of fact are reviewed under
the "clearly erroneous" standard. Fisher, 111 Hawai#i at 46, 137
P.3d at 360. A finding of fact is clearly erroneous when the
record lacks substantial evidence to support the finding, or
despite substantial evidence in support of the finding, we are
nonetheless left with a definite and firm conviction that a
mistake has been made. Id. "Substantial evidence" is credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion.
Id. "It is well-settled that an appellate court will not pass
upon issues dependent upon the credibility of witnesses and the
weight of evidence; this is the province of the trier of fact."
Id. (citation omitted).
The family court's conclusions of law are ordinarily
reviewed de novo, under the right/wrong standard, "and are freely
reviewable for their correctness." Fisher, 111 Hawai#i at 46,
137 P.3d at 360. However, when a conclusion of law presents
mixed questions of fact and law, we review it under the "clearly
erroneous" standard because the court's conclusions are dependent
on the facts and circumstances of each individual case. Est. of
Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504,
523 (2007). A conclusion of law that is supported by the trial
court's findings of fact and reflects an application of the
correct rule of law will not be overturned. Id.
The family court found:
16. Mother and Father have not engaged in any services in
New Mexico.
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FOF no. 16 was supported by Fitzpatrick's testimony. Father and
Mother both testified during the contested case hearing, but
offered no testimony about engaging in the services in New Mexico
required by the July 7, 2020 Family Service Plans. FOF no. 16
was not clearly erroneous.
The family court found:
26. Ms. Fitzpatrick believes it is in [Child]'s best
interest to have [Grandfather] appointed as her legal
guardian.
27. Ms. Fitzpatick does not believe it is in [Child]'s
best interest to reunify with her parents because they
have never been her primary caregivers.
FOF nos. 26 and 27 were supported by Fitzpatrick's testimony.
They were not clearly erroneous.
The family court concluded:
3. Mother and Father are willing, but unable, to exercise
their parental rights.
4. Appointment of a legal guardian for [Child] is in her
best interest.
. . . .
6. [Grandfather] is appointed as [Child]'s legal guardian
pursuant to Hawaii Revised Statutes § 560:5-204(b)(3).
COL nos. 3 and 4 were mixed findings of fact and
conclusions of law. They were supported by the following
unchallenged findings of fact, which are binding on the parties
and this court. See Okada Trucking Co. v. Bd. of Water Supply,
97 Hawai#i 450, 459, 40 P.3d 73, 82 (2002):
8. Mother and Father each had two (2) Court ordered
Service Plans. These Service Plans were dated
December 31, 2019 and July 7, 2020. Mother and Father
agreed to both Service Plans.
. . . .
13. Mother and Father did not complete their Court ordered
Service Plans.
. . . .
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19. [Child] is currently placed with [Grandfather] in
Albuquerque, New Mexico. [Child] has been with
[Grandfather] since March 17, 2020.
20. According to Ms. Fitzpatrick, [Child] is thriving in
[Grandfather]'s care.
21. [Grandfather] has been working with the DHS courtesy
worker in New Mexico, Thelma Rourke, in getting
medical assessments and evaluations for [Child] due to
concerns regarding her development.
22. [Child] has been identified as being on the autism
spectrum.
23. [Child] attends a specialized school for autistic
children. This school is about five (5) minutes from
[Grandfather]'s home.
24. [Child] has communication difficulties, so she is now
learning the PECS system of communication. This
system helps children communicate by identifying what
they want or need through pictures. [Grandfather] is
helping [Child] learn this system of communication.
25. [Child] needs stability and the predictability of a
day-to-day routine in order to thrive. [Grandfather]
is currently providing [Child] with this stability and
predictability.
. . . .
30. Mother and Father have never contacted Ms. Fitzpatrick
or Ms. Rourke.
31. Neither Mother nor Father completed a psychological
evaluation as ordered by the Court.
. . . .
42. [Grandfather] takes care of [Child] full-time.
[Grandfather] collects social security due to a work
injury. This income is sufficient to support himself
and [Child].
. . . .
46. [Grandfather] is willing to do whatever is necessary
to help [Child]. [Grandfather] wants to do whatever
is in [Child]'s best interest.
47. [Grandfather] understands the powers and duties of
being a legal guardian and he is willing to abide by
these duties and responsibilities.
48. [Grandfather] provides visitation for Mother and
Father with [Child].
49. [Grandfather] has tried to discuss [Child]'s special
needs with Mother and Father, but Mother is not very
engaged in this kind of conversation and Father is
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engaged, but he is skeptical of [Child]'s autism
diagnosis.
50. If appointed as [Child]'s legal guardian,
[Grandfather] will continue visitation with Mother and
Father if appropriate.
51. [Grandfather] understands that it is important for
[Child] to know her parents, provided they are
appropriate and safe.
. . . .
53. The GAL is in support of [Grandfather] being appointed
as [Child]'s legal guardian and that this legal
guardianship is in [Child]'s best interest.
. . . .
55. Mother and Father were unable to pick up on [Child]'s
needs during supervised visitations on Maui, such as
badly needing a diaper change.
. . . .
58. Since moving to New Mexico, Mother has not talked to
anyone from New Mexico social services.
. . . .
66. Father requested guardianship of [Child] with his
father because he wanted her with family.
. . . .
73. Father agrees that [Grandfather] is following the
recommendations for [Child]'s diagnosed disability.
COL nos. 3 and 4 were not clearly erroneous. Cf. In re
Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001) (noting that
family court's determinations under HRS § 587-73(a) present mixed
questions of law and fact, review under "clearly erroneous"
standard).
Given those facts, the family court correctly applied
HRS § 560:5-204(b)(3) (2018), which provides:
(b) The court may appoint a guardian for a minor if
the court finds the appointment is in the minor's best
interest, and:
. . . .
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(3) The parents are unwilling or unable to exercise
their parental rights.
COL no. 6 was not wrong.
III.
For the foregoing reasons, the Order Appointing
Guardian entered by the family court on June 16, 2022, is
affirmed.
DATED: Honolulu, Hawai#i, February 2, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Davelynn M. Tengan, Chief Judge
for Appellant EC.
/s/ Keith K. Hiraoka
Yukari Murakami, Associate Judge
for Cross-Appellant UH.
/s/ Clyde J. Wadsworth
Adriel C. S. Menor, Associate Judge
Julio C. Herrera,
Deputy Attorneys General,
State of Hawai#i,
for Petitioner-Appellee
Department of Human Services.
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