In re: BM

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUL-2023
07:50 AM
Dkt. 45 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF BM

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-J NO. 0108787)

MEMORANDUM OPINION
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)

Minor-Appellant BM appeals from the "Order Denying
Motion to Reconsider the September 25, 2018 Order Rescinding
[BM]'s Dismissal in the Interest of Justice Filed October 31,
2018" (Order Denying Reconsideration), entered on November 13,
2018, in the Family Court of the First Circuit (Family Court).1/
BM contends that "[t]he [F]amily [C]ourt erred in rescinding BM's
dismissal in the interest of justice without adequate notice,
without a hearing, without the opportunity to present evidence
and without the opportunity to cross-examine and confront adverse
witnesses in violation of his constitutionally protected rights."
For the reasons explained below, we vacate the Order
Denying Reconsideration and remand to the Family Court with
instructions.

1/
The Honorable Bode A. Uale presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

I. Background

On October 5, 2017, Petitioner-Appellee State of
Hawai#i (State) filed a petition alleging that BM had violated or
attempted to violate the law in the following manner:

On or about September 2, 2015, in the City and County
of Honolulu, State of Hawai#i, except in the execution of a
public duty or as authorized by law, [BM] did intentionally
or knowingly install or use, or both, in any private place,
without consent of the person or persons entitled to privacy
therein, any device for observing, recording, amplifying,
and/or broadcasting another person in a stage of undress or
sexual activity in that place, thereby committing the
offense of Violation of Privacy in the First Degree, in
violation of Section 711-1110.9(1)(a) of the Hawai #i Revised
Statutes.

At a January 25, 2018 hearing, BM entered an admission
to the petition. Following a colloquy with BM, the Family Court
accepted BM's admission and adjudicated him a law violator under
Hawaii Revised Statutes (HRS) § 571-11(1) (2018).2/ Court Officer
Heather Hahn (Hahn) requested that the court extend jurisdiction
over BM, order him to write an apology letter within 21 days and
complete thirty hours of community service within sixty days, and
enter a dismissal in the interest of justice (DIJ) upon
completion of these requirements. BM's counsel "concurr[ed] with
. . . the recommendations" and "ask[ed] . . . at the conclusion
of BM completing these requirements that the DIJ . . . be granted
. . . ." Over the State's objection, the Family Court granted
the DIJ motion on the conditions that BM submit the apology
letter, complete the community service, and "stay out of any
trouble."

2/
HRS § 571-11 provides, in relevant part:
Except as otherwise provided in this chapter, the
court shall have exclusive original jurisdiction in
proceedings:

(1) Concerning any person who is alleged to have
committed an act prior to achieving eighteen
years of age that would constitute a violation
or attempted violation of any federal, state, or
local law or county ordinance. Regardless of
where the violation occurred, jurisdiction may
be taken by the court of the circuit where the
person resides, is living, or is found, or in
which the offense is alleged to have occurred[.]

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On the same date, the Family Court also entered the
"Decree Re: Law Violation Petition(s)" (Decree). The Decree
stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. Jurisdiction over [BM] is hereby extended for purposes
of compliance with all court orders.
2. [BM] shall perform 30 hour(s) of community service
within 60 days of assignment.
3. [BM] shall write a letter of apology to the victim and
submit it to the court officer within 21 days of this
hearing.

4. Over State's objections, the Defense's oral motion for
dismissal in the interest of justice is granted on the
condition that [BM] complies with all court orders and
remains arrest and conviction free for a period of six
(6) months.
5. The Arraignment and Plea set for April 4, 2018 at 1:30
p.m. is hereby set aside.

On September 25, 2018, the Family Court entered an "Ex
Parte Motion; Order." It stated in part:

In the best interest of the State and the welfare of
the minor, the probation officer moves as follows without
hearing:

[x] The minor be counseled by an officer of the Family
Court and released from the Court's jurisdiction.

. . . .

[x] All other outstanding orders are revoked.
. . . .

A box next to the word "Other" is also marked with an "x,"
followed by the handwritten entry, "The DIJ is re[s]cinded," and
what appear to be the initials of the Family Court judge, "BAU."
A box next to the phrase "EX PARTE MOTION GRANTED AND SO ORDERED"
is checked, followed by the signature of the Family Court judge.
There is no indication in the record as to whether or when the Ex
Parte Motion; Order was served on BM, but his counsel later
stated that he (counsel) received a copy on October 22, 2018.
On October 31, 2018, BM filed a "Motion to Reconsider
the September 25, 2018 Order Rescinding [BM's] Dismissal in the

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Interest of Justice" (Motion for Reconsideration or Motion).3/ A
Declaration of Counsel supporting the Motion stated in part:
"There was no hearing scheduled to rescind [BM's] DIJ. [BM] had
no notice. [BM] had no opportunity to present witnesses. [BM]
had no opportunity to confront and cross-examine any adverse
witnesses." Counsel "request[ed] that a hearing date be set on
this Motion." The memorandum supporting the Motion asserted that
"[w]ithout a hearing, notice, and an opportunity to be heard, the
Family Court denied [BM] the due process of law guaranteed him by
article I, section 5 of the Hawai#i State Constitution and the
Fourteenth Amendment to the United States Constitution as well as
[HRS] § 571-50."
Thereafter, the Family Court set a hearing for
November 13, 2018. BM's counsel appeared at the hearing, but BM
was not present. BM's counsel stated in part:

Your Honor, I understand basically we set this hearing
basically because there was an ex-parte motion filed to
rescind the granting of a DIJ.

. . . .

. . . [T]he issue on our end basically was that we
wanted to have a hearing on that issue. I also don't think
that the ex-parte motion specified what conditions weren't
complied with by [BM]. So that was the issue.

In terms of him not being here, I apologize, Your
Honor. I'm not sure where he is this morning. I . . .
would ask that, . . . depending on the court's preference if
you want to deny without prejudice or if you would permit a
continuance, we would attempt to locate [BM] and have him
present at the next court date.

The Family Court then said, "I don't think so. . . . He should

be here." The Family Court asked, "What didn't he comply with?"

Court Officer Jo Guerrero responded: "He didn't do his community

service." BM's counsel then stated:

3/
Under HRS § 571–54 (2018), BM was required to file a motion for
reconsideration in order to appeal from the Ex Parte Motion; Order. See In re
Doe Children, 94 Hawai#i 485, 486, 17 P.3d 217, 218 (2001) (citing In re Doe,
3 Haw. App. 391, 394, 651 P.2d 492, 494 (1982)). The motion for
reconsideration was due within twenty days of the September 25, 2018 Ex Parte
Motion; Order. See HRS § 571-54. However, BM's counsel claimed he did not
receive the Ex Parte Motion; Order until October 22, 2018.

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And . . . that might be the case, Your Honor. Um, the
issue is at this point he's just walking around thinking he
had a DIJ granted. I never had basically a hearing to
address that issue where the court instructed him that
because you didn't comply with this, your DIJ is going away.

. . . .
. . . And also in the ex-parte motion it didn't
specify, so on our end we just didn't have any idea --

The Family Court denied the Motion for Reconsideration
with prejudice and entered the Order Denying Reconsideration.
This appeal followed.

II. Discussion

BM contends that his constitutional rights to due
process were violated when the Family Court rescinded the DIJ
without adequate notice and an opportunity to be heard.
Specifically, BM argues:

[D]ue process entitled BM to adequate and advanced written
notice of the hearing which includes the "specific charge or
factual allegations to be considered at the hearing." In re
Gault, 387 U.S. 1, 50, 87 S. Ct. 1428 (1967). BM was also
entitled to a hearing in which he could have presented
evidence and confronted and cross-examined witnesses.
Because there was no hearing, BM was improperly denied the
opportunity to challenge the accusation. Gault, 387 U.S. at
89-90, 87 S. Ct. 1428.

(Original brackets omitted.)
"The Hawai#i Supreme Court has long recognized that
youthful offenders are protected by the United States and Hawai#i
Constitutions at all stages of family court proceedings." In re
TC, 121 Hawai#i 92, 99, 214 P.3d 1082, 1089 (App. 2009) (citing
In re Doe, 62 Haw. 70, 72, 610 P.2d 509, 511 (1980)). "However,
the supreme court has rejected requests to mandate strict
adherence to adult criminal procedures in juvenile proceedings."
Id. (citing Doe, 62 Haw. at 72, 610 P.2d at 511); see also Doe,
62 Haw. at 73, 610 P.2d at 511 (recognizing that the United
States Supreme Court "has not chosen to mechanically transfer all
procedural safeguards afforded criminal defendants under the
Fourteenth Amendment to juvenile offenders.").

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It appears that Hawai#i appellate courts have not
addressed what due process requires when the family court in an
HRS § 571-11(1) proceeding rescinds a conditional DIJ. However,
in the probation revocation context, the Hawai#i Supreme Court
has ruled that "[d]ue process requires that a youthful offender
whose substantial rights would be affected by a family court
order revoking probation and terminating the stay of a mittimus
be furnished with due notice of the contemplated action, as well
as a hearing." 62 Haw. at 71, 74, 610 P.2d at 510, 512
(reviewing an appeal from a "family court order revoking [the]
juvenile appellant's probation and committing her to the Hawaii
Youth Correctional Facility for the period of her minority"). We
thus conclude that it is appropriate to analyze BM's due process
claim under the framework established by the Hawai#i Supreme
Court:

Under the Hawai#i Constitution, we conduct a two-step
inquiry in analyzing procedural due process claims. We
first consider whether a liberty or property interest has
been interfered with by the State, and second, we determine
what specific procedures are required to satisfy due
process.

A.A. v. B.B., 139 Hawai#i 102, 109, 384 P.3d 878, 885 (2016)
(citing State v. Guidry, 105 Hawai#i 222, 227, 96 P.3d 242, 247
(2004)).

A. Liberty Interest

"Due process . . . is relevant only if liberty or
property is deprived." State v. Bani, 97 Hawai#i 285, 293, 36
P.3d 1255, 1263 (2001) (quoting In re Herrick, 82 Hawai#i 329,
342–43, 922 P.2d 942, 955–56 (1996)). Here, BM argues:

A liberty interest was certainly implicated in the instant
case. BM, as a juvenile offender, may not have enjoyed all
of the same liberties as adult offenders, however, he was
entitled to "conditional liberty properly dependent on the
observation of the special . . . restrictions." State v.
Eline, 70 Haw. 597, 603, 778 P.2d 716, 720[ (1989)] (citing
Morrissey[ v. Brewer], 408 U.S. [471,] 480, 92 S. Ct. 2593[
(1972)]); HRS § 571-11(1).
The liberty of a juvenile offender enables him or her
to a wide range of entitlements open to an individual who
had never been adjudicated of any criminal offense. . . .
BM relied on the family court's order that he would be

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subject to sanctions if he failed to abide by the family
court order. Finally, upon a violation of the family court
order, BM would be subject to adjudication and disposition.

The State responds: "The liberty interest of the
appellants in Eline was to avoid being imprisoned, however, Minor
BM does not claim a similar liberty interest, and as such, the
holding appears to be inapposite to the resolution of the
allegation of error in this appeal."
In Eline, the supreme court ruled that due process
requires a "simple factual hearing" before a suspended sentence
may be revoked for failure to comply with the attached condition
that the defendant not commit another offense during the term of
suspension. 70 Haw. at 603, 778 P.2d at 720. Addressing whether
such revocation denied a liberty interest, the court stated:

An individual subject to a suspended sentence of
course does not enjoy "the absolute liberty" others do; he
is only entitled to a "conditional liberty properly
dependent on observance of special . . . restrictions."
[Morrissey], 408 U.S. at 480, 92 S. Ct. at 2600. That the
deprivation of liberty, restricted though it may be,
inflicts a grievous loss on the individual goes without
saying. Thus, procedural protections are due when the State
seeks to terminate his liberty by revoking his suspended
sentence. Id. at 481, 92 S. Ct. at 2600.

Id.
Although Eline is not directly on point, we conclude
that the Family Court's rescission of the DIJ in these
circumstances implicated a protected liberty interest held by BM,
because rescission of the DIJ meant that dismissal of the State's
petition against BM was rescinded. See, e.g., In re Edwin L, 671
N.E.2d 1247, 1250-51 (N.Y. 1996) (ruling that the liberty
interest of a juvenile who has received an adjournment in
contemplation of dismissal (ACD) under New York law, which
suspends proceedings against the juvenile subject to certain
conditions, is distinguishable from the conditional liberty
interest of a parolee or probationer, but the juvenile still
holds "an attenuated liberty interest in the least restrictive
dispositional order" upon the vacatur of the ADC order); In re
C.Y., 466 A.2d 421, 426-27 (D.C. 1983) (ruling that the
rescission of a consent decree, under which charges against a

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juvenile were to be dismissed if certain conditions were met, and
the reinstatement of the underlying petition pursuant to D.C.
statute, implicated a liberty interest protected by the due
process clause of the fifth amendment).

B. Requirements of Due Process

The supreme court has repeatedly recognized that "due
process is flexible and calls for such procedural protections as
the particular situation demands." Bani, 97 Hawai#i at 296, 36
P.3d at 1266 (quoting Korean Buddhist Dae Won Sa Temple v.
Sullivan, 87 Hawai#i 217, 243, 953 P.2d 1315, 1341 (1998)). To
determine the appropriate process in a given case, we must
balance the following factors (the Mathews factors):

First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.

Bani, 97 Hawai#i at 296-97, 36 P.3d at 1266-67 (quoting Zinermon
v. Burch, 494 U.S. 113, 127 (1990) (quoting Mathews v. Eldridge,
424 U.S. 319, 335 (1976))).
Applying the Mathews factors here, first, we have ruled
that the Family Court's rescission of the DIJ in these
circumstances implicated a protected liberty interest held by BM.
See supra.
Second, the procedure used to rescind the DIJ, namely,
entry of the Ex Parte Motion; Order, which did not provide BM
with any notice of the reason for the rescission, is insufficient
in light of the risk of an erroneous deprivation of BM's liberty
interest. Indeed, it appears that the reason for the DIJ
rescission only came to light during the post-order hearing on
the Motion for Reconsideration. The failure of the State to
provide BM fair notice of the reason for the DIJ rescission in
these circumstances denied him a meaningful opportunity to

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challenge that reason.4/ Accordingly, the procedure that the
State used presented a high risk of an erroneous deprivation of
BM's protected liberty interest.
Third, BM asserts, and the State agrees, that "[t]he
State has an interest in appropriately addressing the needs of
the juvenile without the burden of an adversary hearing to
determine whether the juvenile violated a condition of the family
court." However, the supreme court has also made clear that the
State has an interest in "investing relevant juvenile proceedings
with due process within a humanitarian system where
rehabilitation is unquestionably the primary goal," and in
"maintain[ing] standards consistent with fundamental fairness."
Doe, 62 Haw. at 73, 610 P.2d at 511–12; See C.Y., 466 A.2d at 428
("In all of this, the government has an interest in being fair.
Society will benefit nothing by reinstating the original petition
based upon erroneous information of an alleged breach of the
decree conditions or the erroneous filing of a new petition.
Indeed, fair treatment of the juvenile 'will enhance the chance
of rehabilitation by avoiding reactions to arbitrariness.'"
(quoting Morrissey, 408 U.S. at 484)).
On this record, we conclude that at a minimum, due
process required fair notice to BM of the reason for the DIJ
rescission. BM was thus denied due process when the State failed
to provide such notice even upon entry of the Ex Parte Motion;
Order.5/ Accordingly, the Family Court erred in entering the
Order Denying Reconsideration.

III. Conclusion

For the reasons discussed above, we vacate the "Order
Denying Motion to Reconsider the September 25, 2018 Order

4/
We recognize that BM failed to appear for the November 13, 2018
hearing. However, given due process concerns, he should have had notice of
the basis for the DIJ rescission prior to the hearing in order to have a
meaningful opportunity to contest the rescission at that hearing.
5/
Given our conclusion, we do not reach BM's contention that he was
also denied his constitutional rights when the Family Court rescinded the DIJ
without prior notice to BM and without a pre-decision hearing in which BM had
an opportunity to present evidence and to confront and cross-examine adverse
witnesses.

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Rescinding [BM]'s Dismissal in the Interest of Justice Filed
October 31, 2018," entered on November 13, 2018, in the Family
Court of the First Circuit. We remand the case to the Family
Court with instructions to vacate that part of the September 25,
2018 "Ex Parte Motion; Order" that rescinds the dismissal in the
interest of justice of the October 5, 2017 "Petition by Deputy
Prosecuting Attorney," and for further proceedings consistent
with this Memorandum Opinion.

DATED: Honolulu, Hawai#i, July 25, 2023.

On the briefs:
/s/ Lisa M. Ginoza
Taryn R. Tomasa, Chief Judge
Deputy Public Defender,
for Minor-Appellant
/s/ Keith K. Hiraoka
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Petitioner-Appellee /s/ Clyde J. Wadsworth
Associate Judge

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