In Re: M.C., S.C., T.B., and B.B.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JAN-2024
08:19 AM
Dkt. 56 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF M.C., S.C., T.B., AND B.B.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-S No. 21-00237)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

This appeal by L.B. arises from a Hawai#i Department of
Human Services (DHS) petition for temporary foster custody over
M.C., S.C., T.B., and B.B. (the Minors). The Family Court of the
First Circuit held a contested return hearing on January 11,
2023.1 L.B. did not attend, but his attorney did. The Family
Court defaulted L.B., took jurisdiction over him, and adjudicated
the petition. The court entered an Order[] Concerning Child
Protective Act on January 17, 2023. The Minors' foster custody
was continued. L.B. was ordered to follow DHS's service plan.
The Family Court entered findings of fact and conclusions of law
on March 9, 2023. L.B. appeals. We affirm.

[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

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The Honorable Natasha R. Shaw presided.
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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). A family court's denial of a request to
continue a proceeding is reviewed for abuse of discretion.
Weinberg v. Dickson-Weinberg, 123 Hawai#i 68, 71, 229 P.3d 1133,
1136 (2010). A family court's findings of fact are reviewed
under the clearly erroneous standard. Fisher, 111 Hawai#i at 46,
137 P.3d at 360. Conclusions of law are ordinarily reviewed de
novo, under the right/wrong standard. Id. 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 depend 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
supported by the trial court's findings of fact and reflecting an
application of the correct rule of law will not be overturned.
Id.
DHS filed the petition for temporary foster custody on
December 22, 2021. The initial hearing was held on December 27,
2021. L.B. contested the petition and asked for a trial. Trial
was set for February 7, 2022. It was continued to February 11,
2022, then to May 31, 2022. The Family Court turned the May 31,
2022 trial date into a pretrial hearing because a new guardian ad
litem had to be appointed and L.B.'s attorney was contemplating
withdrawal.
At the May 31, 2022 hearing, L.B.'s attorney informed
the Family Court that he would continue to represent L.B. The
Family Court rescheduled the pretrial hearing to October 3, 2022,
and the trial to October 17, 2022.
At an October 3, 2022 pretrial hearing, L.B.'s attorney
orally moved to withdraw. The Family Court granted the motion
and set aside the trial date to allow L.B. to obtain new counsel.
Trial was rescheduled to December 12, 2022. Substitute counsel
was appointed on November 30, 2022.

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An unsuccessful mediation was held on December 5, 2022.
L.B. orally moved to continue the trial. The Family Court denied
the motion. On December 8, 2022, L.B. moved to continue the
trial or to discharge his attorney. The Family Court continued
the trial to January 11, 2023, but informed L.B.:

And [L.B.], if you decide that you don't like [your
attorney], or whatever it may be, and you decide you don't
want him to be your attorney, it doesn't matter if you have
a different attorney, we are going to trial on January,
okay? Whatever reason that you come up with in January, you
know, we're going to proceed, understand?

[L.B.]: All right.

The Family Court's written order stated:

[L.B.] shall be prepared to proceed to trial on [January 11,
2023] regardless of his counsel situation, including if he
discharges his current counsel or obtains new counsel.
[L.B.] shall be prepared to proceed pro se if he does not
have an attorney at trial. THERE SHALL BE NO FURTHER
CONTINUANCES BASED ON [L.B.]'s retention or lack thereof, of
COUNSEL.

L.B. didn't appear on January 11, 2023. The Family
Court waited over an hour for him. The court then recited the
case's procedural history and stated:

And this morning [L.B.'s attorney] provided the Court
with two copies of two documents that [he] received from his
client. One of the documents is titled Hawaii Emergency
Physicians Associated, Inc. It's a medical certificate from
Honolulu County Medical Society. It says, Court will read
it: This is to certify that [L.B.] has been under my
professional care and in my opinion was incapacitated from
performing his/her usual duties from October 10th, 2023
through -- I'm sorry -- January 10th, 2023 through
January 12th, 2023, and the date is January 10th, 2023. And
it was signed by someone. The signature is not legible and
there is a MD that was scratched out and an RN written above
it.
There's also a looks like doctor's note regarding
[L.B.], and that he visited the doctor at Adven -- Adventist
Health Castle on January 10th, 2023. He was discharged with
viral syndrome, that the instruction -- follow-up
instructions were that he were to follow up with his primary
care provider within one to two days, and these two days
happen to fall on the two days of this trial.

The Court attempted to contact [L.B.], however there
was no response by [L.B.]. The Court informed [L.B.'s
attorney] that his client can appear by Zoom for the trial,

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however [counsel], based on the two letters provided, said
that his client was incapacitated, could not attend the
hearing.

The Family Court asked the parties for their positions.
The Minors' guardian ad litem objected to L.B.'s failure to
appear. DHS stated it was "very suspicious of this report . . .
given the history of this case" but took no position on whether
to default L.B. L.B.'s attorney stated:

Well, Your Honor, if my client is sick, that should be
reason to excuse him from this trial today. You know, the
Court could, in terms of his default, take it under
advisement, set another trial date. If the DAGs or someone
else can verify that these documents are not correct, that
he's out playing golf today, then the Court can default him
nunc pro tunc.

But I have no reason to believe he is lying in these
documents, Your Honor. I -- you know, because of the number
of continuances, I guess the Court is correct to be wary
about whether or not he, in fact, is incapacitated, but
without contrary evidence, I believe the Court should
continue this matter and set another trial date.

The guardian ad litem asked the Family Court "to do
an evaluation to check [L.B.'s] capacity, if that is really the
reason why he is unable to attend. Otherwise, I cannot agree
that he can't attend based on incapacitation." The Family Court
ruled:

Okay. Based on the totality of what has transpired as
to the continuances, and that it's been over one year, and
that [L.B.] had notice of the trial date, the Court finds
that these two documents are not good cause to continue the
contested adjudication trial. The Court's going to find
that [L.B.] has inexcusably and willfully failed to appear
at trial, and the Court will default [L.B.], adjudicate the
petition as to [L.B.], take jurisdiction as to [L.B.].

And then, [L.B.'s attorney], if there's something more
than just these documents that -- you know, you can file an
appropriate motion later and the Court can (inaudible) as
well. But for -- the Court's going to default him today and
take -- take jurisdiction.

The record does not reflect that L.B. moved for reconsideration
or to set aside his default.

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The January 17, 2023 Order stated:

Regarding [L.B.]'s non-appearance, [L.B.'s attorney]
informed the Court that [L.B.] is ill and requested a
continuance of [L.B.]'s scheduled adjudication trial. In
support, [counsel] submitted a "Medical Certificate" from
"Hawaii Emergency Physicians Associated, Inc." and a note
from "Adventist Health Castle" regarding [L.B.], which the
Court reviewed. The Court attempted to call [L.B.] multiple
times but was not able to reach him. GAL objected to
[L.B.]'s non-appearance and request for a continuance, while
DHS, Mother, and [counsel for another party] took no
position. After due consideration, including the Court
taking note of [counsel]'s submissions as well as the
history of continuances and prior orders in this case, the
Court, over [counsel]'s objections, does not find good cause
to excuse [L.B.]'s non-appearance or to grant [counsel]'s
request for another continuance. Moreover, over [counsel]'s
objections, the Court finds that [L.B.] inexcusably and
willfully failed to appear for his adjudication trial and is
in default.

Foster custody for Minors was continued. The DHS Family Service
Plan dated December 22, 2021 was ordered as to L.B. The service
plan required that L.B. have a psychosexual evaluation; complete
sexual offender therapy; participate in #Ohana conferencing;
participate in an alcohol and drug assessment and participate in
any recommendations; and cooperate with DHS's social worker and
providers.
This appeal followed.
L.B. challenges the Family Court's findings and
conclusions about the medical certificate from Hawaii Emergency
Physicians Associated and the note from Adventist Health Castle.
L.B. relied on those documents to show good cause for his failure
to appear at trial, but neither document appears in the record on
appeal. L.B. has "the burden of furnishing the appellate court
with a sufficient record to positively show the alleged error.
An appellant must include in the record all of the evidence on
which the lower court might have based its findings and if this
is not done, the lower court must be affirmed." Union Bldg.
Materials Corp. v. Kakaako Corp., 5 Haw. App. 146, 151–52, 682
P.2d 82, 87 (1984) (citations omitted).
Under those circumstances, including the Family Court
offering to let L.B. appear by Zoom, trying to contact him

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multiple times after his non-appearance, inviting counsel to move
to set aside L.B.'s default, and L.B.'s failure to then submit
"other relevant and credible evidence as to why [he] inexcusably
failed to appear[,]" we cannot say that the Family Court abused
its discretion by denying a continuance of the trial, taking
jurisdiction over L.B. under HRS §§ 571-11(9) (2018 & Supp. 2020)
and 587A-5 (2018), and defaulting him.
L.B. also challenges conclusion of law no. 57, which is
actually a mixed finding and conclusion. The Family Court found
and concluded that "the reports submitted pursuant to HRS
§[§] 587A-7 [safe family home factors] and 587A-18 [reports to be
submitted by DHS and authorized agencies] and other evidence and
the record" were enough "to sustain the Petition as to [L.B.]"
because the Minors "are children whose physical or psychological
health or welfare has been harmed or is subject to threatened
harm by the acts or omissions of" L.B. The Family Court's
finding was supported by substantial evidence in the record,
including reports of L.B.'s alleged sexual abuse of M.C. and
others. The Family Court's conclusion reflects an application of
the correct rule of law. Est. of Klink, 113 Hawai#i at 351, 152
P.2d at 523.
For these reasons, we affirm the Family Court's "Orders
Concerning Child Protective Act" entered on January 17, 2023.
DATED: Honolulu, Hawai#i, January 25, 2024.

On the briefs:
/s/ Katherine G. Leonard
Herbert Y. Hamada, Acting Chief Judge
for Respondent-Appellant L.B.
/s/ Keith K. Hiraoka
Philip Dureza, Associate Judge
Julio Cesar Herrera,
Deputy Attorneys General, /s/ Sonja M.P. McCullen
State of Hawai#i, Associate Judge
for Petitioner-Appellee
Department of Human Services.

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