October, 2020 - Case Summaries - Family Law

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.

Topics Include: Child Protective Services; Service by Publication; Intervention after Default; Fam Court Orders of Protection; Judicial Notice

NO. CAAP-19-0000711

In the Interest of AA

Memo Op

Subject Matter: Child Protective Services; Service by Publication; Intervention after Default

Background:

  • "appeals from the "Decision and Order Regarding the Contested Hearing on [AM]'s Motion to Set Aside Default Filed June 5, 2019[,]" (Decision & Order) entered by the Family Court of the First Circuit1 on September 20, 2019. We affirm the Decision & Order."

  • At child's birth, mother told staff she had concerns of DV at home.  Child was placed in foster care.  Mother sparsely attended CPS hearings.   DHS served father by publication only.  Mother's parental rights were terminated and adoption was ordered as the permanent plan. 

  • Prior to adoption, DHS asked for an emergency hearing as AM had come forward claiming to be the child's father.  AM started a paternity case and was adjudicated the child's father.  AM moved to intervene in the CPS case.  Child was 2yrs 4mo old when the intervention hearing was had.  AM's motion was granted by a per diem judge.  The actual judge took issue with it, saying he thought the prior default in the TPR needed to be set aside first before AM could intervene.

  • The Child's resource caregivers moved to intervene as well and AM objected.  The Court granted the RC's motion to intervene and set aside the intervention order re AM.

  • AM then filed a motion to set aside his prior default in the case.  This was denied.  AM appealed.

 

Issues:

  • (1) the family court erred in concluding that AM was duly served by publication;

  • (2) the family court erred in not setting aside the entry of AM's default and the termination of AM's parental rights by default; and

  • (3) the denial of AM's motion to intervene deprived AM of his constitutional right to due process.

 

Service by Publication - No Error:

  • Am Argues: "DHS did not establish, nor did the family court find, that it was "impracticable" to personally serve the then-unknown father."

  • No Error: The ICA found that the court's findings and conclusions re this were not clearly erroneous and not wrong, respectively.

 

Default - No Error:

  • Rule: "AM was required to obtain relief under both HFCR Rule 55 and HFCR Rule 60(b). AM had the burden of establishing that: (1) Child will not be prejudiced by the reopening; (2) AM has a meritorious defense; and (3) AM's default was not the result of inexcusable neglect or a wilful act. Chen, 146 Hawaii at 173-74, 457 P.3d at 812-13."

  • No Error: "These findings of fact were supported by substantial evidence in the record. In addition, "[i]t 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." Fisher, 111 Hawaii at 46, 137 P.3d at 360 (citation omitted)."

 

Denial of Due Process by Denying Motion to Intervene - No Error:

  • Rule - Default Set Aside Required First: "AM had been defaulted before he moved to intervene, and a default judgment was entered. AM had to have both his default and the default judgment set aside before he could have standing to intervene."

Law of the Case Issue re Per Diem Judge:

  • "AM argues that Judge Uale violated the "law of the case" when he set aside the per diem judge's approval of the parties' stipulation to allow AM to intervene."

  • "It is true that in cases upon which more than one judge has presided, "the usual practice of courts to refuse to disturb all prior rulings in a particular case" is referred to as the "law of the case[.]" Chun v. Bd. of Trs. of Emps.' Ret. Sys., 92 Hawaii 432, 441, 992 P.2d 127, 136 (2000) (citation omitted). "Unless cogent reasons support the second court's action, any modification of a prior ruling of another court of equal and concurrent jurisdiction will be deemed an abuse of discretion." Wong v. City & Cty. of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983) (citations and emphasis omitted)."

No Error: "In this case, Judge Uale had "cogent reasons" to set aside the per diem judge's ruling because AM failed to set aside his default, or the judgment terminating his parental rights, before moving to intervene."

No Error Because a Trial was Had: "The family court conducted a 2-day evidentiary hearing on AM's motion to set aside the entry of his default and the default judgment. As was discussed above, the family court did not err in declining to set aside the entry of default or the default judgment. We hold that AM was not deprived of due process."

 

NOS. CAAP-18-0000029 and CAAP-18-0000033

Perez v Perez

SDO ICA

 

Subject Matter - Fam Court Orders of Protection; Judicial Notice

 

Orders of Protection:

Point of Error - Did the court err by entering the orders of protection?

Rules:

  • (1) Hawaii Revised Statutes (HRS) § 586–5.5 (2018) authorizes a trial court to convert a temporary restraining order into a longer-lasting protective order upon making certain findings. See Styke v. Sotelo, 122 Hawaii 485, 489 n.5, 228 P.3d 365, 369 n.5 (App. 2010).

  • The statute states, in relevant part: If, after hearing all relevant evidence, the court finds that the respondent has failed to show cause why the order should not be continued and that a protective order is necessary to prevent domestic abuse or a recurrence of abuse, the court may order that a protective order be issued for a further fixed reasonable period as the court deems appropriate.

  • Domestic abuse is defined as "[p]hysical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage between family or household members." HRS § 586- 1 (2018).

  • Under HRS § 586–5.5(a), the burden remains on the petitioner to prove the underlying allegations by a preponderance of the evidence. Kie v. McMahel, 91 Hawaii 438, 442, 984 P.2d 1264, 1268 (App. 1999) (citation omitted).

Holding - Credible Ev Supported Fam Crt Ruling:

  • The Family Court found and concluded that the testimonies of John, Dennis, and Dr. Amy Brown were credible. The Family Court found and concluded that Michael's testimony, in which he disputed the other witnesses' statements, was not credible.

  • We conclude that the Family Court's findings of fact were supported by the evidence before the court, and they were not clearly erroneous. Thus, the Family Court did not err. ..

 

Length of Protective Order:

Point of Error: Did Fam Court err where it issued order of protection for 10 yrs?

Rules:

  • Nothing in HRS § 586-5.5(a) prescribes the maximum length of a protective order, but rather it allows the court to extend an order "for such further fixed reasonable period as the court deems appropriate."

  • The Family Court had the discretion to determine the length of the protective order. See Styke, 122 Hawaii at 491, 228 P.3d at 371.

  • In Lite v. McClure, this court concluded that a family court did not abuse its discretion when it issued an order of protection for ten years. No. 29107 , 2009 WL 1263099 (Haw. App. May 8, 2009) (SDO). There, the petitioner had requested a nocontact protective order for "[f]orever, as long as the Court will allow." Id. at *2. The family court rejected Lite's request for an "indefinite protective order," and instead issued an order for "a fixed period of ten years." Id. We found "no legal impediment to a term of ten years" and held that ten years was not unreasonable, did not disregard the rules and principles of law, and accordingly was not an abuse of discretion. Id.

Holding - No Abuse of Discretion:Here, we similarly conclude that, under the facts and circumstances of this case, especially the relationship and history of the parties, a ten-year duration for the Orders of Protection was not unreasonable, did not disregard the rules and principles of law, and accordingly was not an abuse of discretion.

 

Judicial Notice Issue:

Point of Error: Michael argues that the Family Court erred by taking judicial notice of the records and files [in the various fam court cases involving the parties]

Standard of Review - Plain Error

Rules:

  • Under HRE Rule 201, the court may take judicial notice of a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." HRE Rule 201(b). Put more simply, a fact is a proper subject for judicial notice if it is common knowledge or can be easily verified. Uyeda v. Schermer, 144 Hawaii 163, 172, 439 P.3d 115, 124 (2019).

  • The contents of court records are frequently the subject of judicial notice, because court records, particularly those in the trial court's files or immediate possession, are readily accessible and the accuracy of those records "generally cannot be considered reasonably questionable." Id. (quoting State v. Akana, 68 Haw. 164, 166, 706 P.2d 1300, 1302 (1985)).

Holding - No Error: Upon review of the record on appeal, particularly the May 30, 2018 Findings of Fact and Conclusions of Law, it does not appear that the judicial notice taken by the Family Court exceeded the bounds of HRE Rule 201(b).