S.G. v. B.A.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-APR-2024
07:59 AM
Dkt. 108 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

S.G., Petitioner-Appellant, v.
B.A., Respondent-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1PP181006006)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

This appeal arises out of a custody dispute between
Petitioner-Appellant S.G. (Mother) and Respondent-Appellee B.A.
(Father). Mother appeals from the following post-judgment orders
entered by the Family Court of the First Circuit (Family Court):1/
(1) the July 6, 2022 "Trial Order re: [Mother's] Motion for
Relief After Judgment Filed March 22, 2021 and Supplemental
Motion for Relief After Judgment Filed August 30, 2021, and
[Father's] Motion for Relief After Judgment filed May 10, 2021"
(Trial Order); and (2) the November 3, 2022 "Order Denying Non-
Hearing Motion for Reconsideration and/or Further Hearing, Filed
July 18, 2022" (Order Denying Reconsideration). The Trial Order
awarded sole legal and physical custody of Mother and Father's
minor daughter (Daughter) to Father.
On appeal, Mother contends that the Family Court erred:
(1) "by awarding sole legal custody to Father when he did not
request it and Mother was not on notice that she stood to lose

1/
The Honorable Rebecca A. Copeland presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

her parental rights"; and (2) "by excluding [Mother's older
daughter (Sister)] from testifying to allegations of physical
abuse against Father." Mother also challenges certain related
aspects of the Family Court's March 10, 2023 "Findings of Fact
and Conclusions of Law."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Mother's contentions as follows, and vacate.
(1) Mother argues that "the Family Court violated
Mother's due process rights by awarding Father sole legal
custody, with no notice to Mother, where no party requested that
relief." (Formatting altered.) Father responds that "[a]nyone
going into a family court trial involving children is on notice
that the family court may sua sponte award sole legal custody of
a child to one parent or another" based on Hawaii Revised
Statutes (HRS) § 571-46.1(c).2/
Parents have a substantive liberty interest in the care
and custody of their children protected by the due process clause
of article 1, section 5 of the Hawai#i Constitution. In re Doe,
99 Hawai#i 522, 533, 57 P.3d 447, 458 (2002); see also Troxel v.
Granville, 530 U.S. 57, 65 (2000) ("[T]he interest of parents in
the care, custody, and control of their children[ ]is perhaps the
oldest of the fundamental liberty interests recognized by this
Court."). Relatedly, parental rights cannot be denied without
notice and an opportunity to be heard at a meaningful time and in
a meaningful manner. See In re JH, 152 Hawai#i 373, 380-81, 526
P.3d 350, 357-58 (2023) (quoting In re Doe, 99 Hawai#i at 533, 57
P.3d at 458); see also Doe v. Doe, 120 Hawai#i 149, 169, 202 P.3d
610, 630 (App. 2009) ("[U]nder the Hawai#i Constitution, absent
express findings of exigent or emergency circumstances, due
process requires that a parent be given notice and an opportunity
to be heard prior to a change in primary physical or legal
custody in family court custody matters . . . ."). Further,

2/
HRS § 571-46.1(c) (2018) states: "Any order of joint custody may
be modified or terminated upon the petition of one or both parents or on the
court's own motion if it is shown that the best interests of the child require
modification or termination of the order."

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"[p]rocedural due process requires that an individual whose
rights are at stake understand the nature of the proceedings he
or she faces." In re Doe, 99 Hawai#i at 533, 57 P.3d at 458.
Here, pursuant to the Family Court's May 15, 2019
stipulated order, Mother and Father had joint legal custody of
Daughter, with Mother having tie-breaking authority, and Mother
had sole physical custody of Daughter, subject to Father's
timesharing. On March 22, 2021, Mother filed a motion for relief
after judgment or order, seeking to modify visitation and child
support because she and her husband were relocating to Maryland.
Mother did not seek a modification of legal or physical custody.
On May 10, 2021 Father filed a motion for relief after judgment
or order, seeking to modify physical custody and child support in
the event Mother relocated to Maryland, such that Father "be
awarded sole physical custody." Father did not seek a
modification of legal custody. On August 30, 2021, Mother filed
a supplemental motion for relief after judgment or order,
seeking, among other things, sole legal custody of Daughter and
suspension of Father's visits until he completed a previously
ordered domestic violence intervention class.
At trial, Father testified that he was "asking the
Court to award both [him] and [Mother] joint legal custody," but
without tiebreaking authority, specifying that disagreements
would be resolved by working together or through a third-party
parent coordinator. Father testified to his willingness to work
with Mother to make parenting decisions. For her part, Mother,
in her closing argument, did not renew her request for sole legal
custody, but, rather, sought "some joint sharing in terms of the
joint legal custody." It thus appears that by the end of trial,
no party was requesting sole legal custody, and Father had never
sought sole legal custody.
Nevertheless, following closing arguments, the Family
Court ruled from the bench that "Father shall have sole legal
custody." The court explained:

While [F]ather did request joint custody, the Court finds
that that is the current status of legal custody. Mother
has had more than a sufficient opportunity to prove that
she's capable of meaningfully possessing joint custody, and

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she's also proven incapable of including [F]ather in
decisions related to the child.

The court then awarded Father sole physical custody and also
adopted Father's timesharing plan with certain changes, providing
visitation for Mother.
Based on our review of the record, it appears that the
Family Court's bench ruling was the first time Mother was
notified that her legal custody of Daughter could (and would) be
terminated. We do not read HRS § 571-46.1(c) as authorizing the
court to end a parent's legal custody of their child without
notice. In any event, due process required at a minimum that
Mother be given adequate notice before a fundamental parental
right, i.e., legal custody of her child, was terminated. See Doe
120 Hawai#i at 169, 202 P.3d at 630. On this record, we conclude
that the Family Court erred in awarding sole legal custody to
Father without adequate notice to Mother that her legal custody
could be terminated, and we cannot conclude that the error was
harmless. See id. at 170, 202 P.3d at 631. Accordingly, the
challenged orders must be vacated and the case remanded for a new
trial.
(2) Mother contends that the Family Court abused its
discretion by excluding Sister from testifying to allegations of
physical abuse against Father. Mother argues that: (a) in
Findings of Fact (FOFs) 21 and 22, the Family Court "prejudged
and dismissed Sister's testimony without ever hearing from her";
and (b) when asked to reconsider its decision, the Family Court
"misinterpreted the reconsideration motion as asking to allow
Sister to testify about her preference, when Mother had asked for
Sister to be allowed 'to testify about the abuse by Father at
trial.'"
In custody proceedings, "the paramount consideration is
the best interests of the child." Doe v. Doe, 98 Hawai#i 144,
155, 44 P.3d 1085, 1096 (2002) (ellipsis omitted) (quoting In re
Doe, 52 Haw. 448, 453, 478 P.2d 844, 847 (1970)); see HRS § 571-
46(a)(1) (2018). In turn, "[w]here the best interests of a child
is of paramount importance, consideration of all relevant
evidence becomes a critical duty of the court in making a

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decision regarding custody and visitation." In re Doe, 109
Hawai#i 399, 411, 126 P.3d 1086, 1098 (2006). "A determination
of family violence bears directly upon the best interests of the
child, as indicated in HRS § 571–46(9), which provides that, when
a determination of family violence is made by the family court, a
rebuttable presumption is created that custody should not be
placed with the perpetrator[.]" Doe, 98 Hawai#i at 156, 44 P.3d
at 1097; see Tumaneng v. Tumaneng, 138 Hawai#i 468, 475, 382 P.3d
280, 287 (2016) ("Doe highlights the importance of considering
all testimony relevant to allegations of domestic violence in
custody determinations.").
We recognize that under Hawai#i Family Court Rules
(HFCR) Rule 45.1, the family court in its discretion "may
determine whether to allow the testimony of [a] child and the
form and manner in which the child's testimony will be
permitted."3/ Here, however, Mother sought to allow her 15-year-
old daughter, i.e., Sister, to testify to, among other things,
alleged acts of physical abuse by Father.4/ In the circumstances
of this case, such testimony was relevant to the best interests
of Daughter. See cases cited supra. Nevertheless, it appears
that the Family Court, without actually hearing from Sister,
denied Mother's motion to allow Sister to testify, primarily
because: (a) "[t]he court d[id] not find that testimony
presented by [Sister] will meaningfully assist this Court in its
best interest analysis" (FOF 21); and (b) "given Mother's
demonstrated negative narrative related to Father, which Mother
has fostered and encouraged with [Sister], the child's testimony
will not provide a sufficient [sic] neutral view of Father" (FOF
22). Based on our review of the record, we conclude that the
Family Court abused its discretion by denying Mother's motions to

3/
HFCR Rule 45.1 states: "Prior approval must be obtained from the
court before any child is summoned to appear as a witness so that the court
may determine whether to allow the testimony of the child and the form and
manner in which the child's testimony will be permitted."
4/
Although Mother's pre-trial and oral motions did not explicitly
mention the alleged abuse by Father, Father's counsel brought up the
allegations in opposing the oral motion, and the Family Court was presumably
aware of the allegations based on the records in the case. Mother's motion
for reconsideration explicitly stated that Sister would testify about her
allegations against Father.

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allow Daughter to testify in these circumstances, and by
"curtaili[ing] its own opportunity to fairly judge [Sister's]
credibility . . . ." AC v. AC, 134 Hawai#i 221, 234, 339 P.3d
719, 732 (2014).
For these reasons, we vacate the Family Court of the
First Circuit's: (1) July 6, 2022 "Trial Order re: [Mother's]
Motion for Relief After Judgment Filed March 22, 2021 and
Supplemental Motion for Relief After Judgment Filed August 30,
2021, and [Father's] Motion for Relief After Judgment filed
May 10, 2021"; (2) November 3, 2022 "Order Denying Non-Hearing
Motion for Reconsideration and/or Further Hearing, Filed July 18,
2022"; and (3) March 10, 2023 "Findings of Fact and Conclusions
of Law." We remand the case for a new trial and for further
proceedings consistent with this Summary Disposition Order.
Mother's request that this case be remanded to a different judge
is denied.

DATED: Honolulu, Hawai#i, April 19, 2024.

On the briefs:
/s/ Katherine G. Leonard
David Eitan Arom, Acting Chief Judge
Appellate Pro Bono Program
(Gibson, Dunn & Crutcher LLP)
for Petitioner-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Justin L. Sturdivant and
Daniel E. Pollard
(Smith & Sturdivant, LLLC) /s/ Sonja M.P. McCullen
for Respondent-Appellee. Associate Judge

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