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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-DEC-2025
07:59 AM
Dkt. 61 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

E.A., Petitioner-Appellee, v.
N.B., Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2FPA-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

This case involves a dispute over custody of Child.
After a trial, the Family Court of the Second Circuit awarded
sole legal and physical custody to Child's biological father,
E.A. (Father).1 N.B., who claimed to be Child's legal and
"psychological father," appeals from the December 23, 2024
Judgment of Paternity and Order Regarding Custody. We affirm.
These findings of fact are unchallenged:2 When Child
was born, Child's Mother was living on Kaua#i and in a romantic
relationship with N.B. Mother told N.B. he was Child's father.
N.B. was identified as Child's father on Child's birth
certificate. Three years later, Mother told Father (who lived on
Maui) he was Child's father. Two years after that, Mother and

1
The Honorable Lance D. Collins presided.
2
Unchallenged findings of fact are binding on appeal. Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82
(2002).
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Child moved to Maui (where Father lived) to continue Mother's
recovery from substance abuse. Mother and Child initially lived
with Father's sister. Mother resumed her relationship with
Father. Mother began living with Father, while Child continued
to live with Father's sister and her family. Mother relapsed in
2024. She was to be admitted to a residential treatment program
in Nevada, where Child would be cared for by a relative. She
went to Kaua#i to see her mother before going to Nevada. She
overdosed on illegal drugs at N.B.'s house, was taken to a
hospital, and was placed on life support. She was discharged,
again used drugs at N.B.'s house, overdosed, and died.
Father petitioned for paternity on October 2, 2024,
under the Hawai#i Uniform Parentage Act, Hawaii Revised Statutes
(HRS) Chapter 584. He submitted genetic test results showing he
was Child's biological father. The return hearing was held on
November 21, 2024. Both sides were represented by counsel.
Trial was set for December 3, 2024. The Family Court ordered
briefing on A.A. v. B.B., 139 Hawai#i 102, 384 P.3d 878 (2016),
"and if and how the de facto parent doctrine applies to this
case."
Trial was held on December 3, 2024. The Family Court
announced its mixed finding and conclusion that N.B. had not
sustained his burden of proving he was entitled to custody under
HRS § 571-46(a)(2) and A.A. v. B.B. An order was entered on
December 3, 2024, providing for Child's maternal grandfather to
take physical custody of Child until Father could retrieve Child
from Kaua#i.
The Judgment was entered on December 23, 2024. N.B.
moved for reconsideration. The motion was denied. This appeal
followed. The Family Court entered amended findings of fact
(FOF) and conclusions of law (COL) on April 2, 2025, consistent
with Rule 52 of the Hawai#i Family Court Rules.
We have reordered and broken down N.B.'s statement of
the points of error. N.B. contends the family court erred by:
(1) applying the presumptions of paternity under HRS § 584-4;

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(2) misapplying the de facto custody doctrine under HRS
§ 571-46(a)(2); (3) not conducting a best-interests-of-the-child
analysis under HRS § 571-46; and (4) ordering an expedited trial
without making findings of exigent circumstances, thus depriving
N.B. of the opportunity to be heard at a meaningful time and in a
meaningful manner. We address the substantive points first,
because they inform our analysis of the procedural point.
(1) N.B. argues the Family Court "erred in applying
the presumptions of paternity under HRS § 584-4." The statute is
part of HRS Chapter 584, the Uniform Parentage Act. "The purpose
of HRS chapter 584 is to provide a method whereby certain parties
may ascertain the identity of the natural or biological father of
a subject child." Doe v. Doe, 99 Hawai#i 1, 16, 52 P.3d 255, 270
(2002) (Acoba, J., dissenting).
Here, genetic testing showed Father was Child's
biological father.3 N.B. presented no evidence to controvert the
test result, and N.B.'s attorney agreed there was no dispute that
Father was Child's biological father. The Family Court did not
need to use the HRS § 584-4 rebuttable presumptions. It did, but
that was harmless error because the Family Court correctly
applied HRS § 571-46(a)(2). We discuss this issue next.
(2) N.B. argues the Family Court misapplied the "de
facto custody doctrine." De facto custody is not a doctrine; it
is an element of HRS § 571-46, which "provides standards that
apply to a court's custody decision in proceedings involving a
dispute as to the custody of a minor child[.]" A.A. v. B.B., 139
Hawai#i at 106, 384 P.3d at 882.
As relevant to this case, HRS § 571-46 (2018) provides:

(a) In actions . . . where there is at issue a dispute as
to the custody of a minor child, the court . . . shall be
guided by the following standards, considerations, and
procedures:

3
The Family Court found, and N.B. does not challenge:
30. On October 2, 2024, [Father] submitted a genetic
test that indicated by a power of exclusion greater than
99%, that he is [Child]'s biological father.

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. . . .
(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the
best interest of the child. Any person who has
had de facto custody of the child in a stable
and wholesome home and is a fit and proper
person shall be entitled prima facie to an award
of custody[.]

(Emphasis added.)
The term "de facto custody" is not defined by statute,
but the supreme court held it to be "consistent with a parental
role." A.A. v. B.B., 139 Hawai#i at 107, 384 P.3d at 883. It is
"physical custody in combination with an assumption of incidents
of legal custody enumerated in HRS § 571-2, which include 'the
duty to protect, train, and discipline the minor and to provide
the minor with food, shelter, education, and ordinary medical
care.'" Id.

Accordingly, the de facto presumption, which is also subject
to the best interests of the child standard, would only
apply when the nonparent custodian is able to demonstrate
that he or she (1) has had "de facto custody" of the child
(2) in a stable and wholesome home and that (3) the
custodian is a fit and proper person.

Id. at 116, 384 P.3d at 892.
Since N.B. was not Child's father, he would only be
entitled to custody if he proved he protected, trained, and
disciplined Child, provided Child with food, shelter, education,
and ordinary medical care in a stable and wholesome home, that he
was a fit and proper person, and that being in his custody served
Child's best interests.
The Family Court received evidence about "broken meth
pipes" in N.B.'s driveway, "paraphernalia all over the house,"
and "multiple drug users" going to N.B.'s house to "do drug
deals." After receiving all the evidence, including testimony
from N.B. and three witnesses he called, the Family Court
explained:

In this Court's view, [N.B.] has met the element of de
facto custody of the child since August. The Court does
find that after mother passed away, that [N.B.] has had de

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facto custody of the child. However, in the Court's view,
[N.B.] has not met his burden to prove by a preponderance of
the evidence that he's a fit and proper person or that he
can provide a stable and wholesome home.
Regrettably, I don't find the testimony of [N.B.'s
sister] to be credible at all. And I also have some
concerns about the credibility of [N.B.]'s testimony and his
other witnesses, [his employers]. I don't find that their
testimony was clearly helpful -- well, they didn't provide
any testimony for the third element, and I didn't find their
testimony as to number one was particularly helpful.

So on that basis, I find that [N.B.] has not met his
burden to prove that he's a de facto parent. So on that
basis, [Father] as the only living parent of [Child] will
have sole legal and physical custody of the child and that
the Department of Health will be ordered to prepare a new
birth certificate with the name of [Father] as the father
and the name of the child to be [XXX] as requested in the
prayer for relief.

"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." Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360
(2006). The Family Court found and concluded:

P. [N.B.] failed to prove that he is a fit and
proper individual or that he has a stable and wholesome
home.

The mixed finding and conclusion is supported by substantial
evidence and correctly applied the law. See Est. of Klink ex
rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523
(2007). It will not be overturned. Id.
(3) N.B. argues the Family Court did not conduct a
best-interests-of-the-child analysis. Father is Child's only
living parent. N.B. was not "entitled prima facie to an award of
custody" under HRS § 571-46(a)(2). No other party sought
physical or legal custody of Child.4 Under those circumstances,
the Family Court was not required to determine whether being in
Father's physical and legal custody was in Child's best
interests. The Family Court nevertheless made the determination;

4
For example, the Department of Human Services under the Child
Protective Act, HRS Chapter 587A.

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it found and concluded it was "necessary and in the best interest
of the child that [Child] be physically turned over to his
maternal grandfather . . . forthwith, who shall take immediate
physical custody of [Child] on behalf of [Father] to facilitate
[Father] taking custody of the child as soon as possible." The
mixed finding and conclusion is supported by substantial evidence
and correctly applied the law, and will not be overturned. See
Est. of Klink, 113 Hawai#i at 351, 152 P.3d at 523.
(4) N.B. argues the Family Court deprived him of the
opportunity to be heard at a meaningful time and in a meaningful
manner by ordering an expedited trial.
During the return on Father's petition, N.B.'s counsel
requested a continuance "to prepare more thoroughly for any kind
of hearing." The Family Court stated, "we're not having an
evidentiary hearing today." The court asked N.B.'s counsel
whether she was available on December 3. Counsel replied, "yes,
your Honor." The court set the trial for that date. N.B. did
not object, and agreed to the witness and exhibit list deadline.
N.B. did not move to continue the trial date.
N.B. served a trial subpoena on the Department of Human
Services, requesting records from Child Welfare Services. N.B.'s
counsel stated, "we're looking for these allegations and whether
the abuse allegations were confirmed or not confirmed, and this
is specifically regarding [Father]." The court asked N.B.'s
counsel:

Let me just ask for purposes of the DHS records, in
terms of the legal theory . . . what I'm saying is the legal
theory why you would need the CPS records is because the
theory would go even if [Father] ends up being the legal
parent, that your client is the de facto parent, and that
the legal parent is not a fit and proper person. That's the
overarching theory.

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Counsel responded, "Right."
Later that day, the court explained further:

I'm just trying to understand what the need is for the
material and it sounds like the need for the material is
something that would be needed if [N.B.] first is able to
demonstrate that he is a de facto parent under the statute.
Because if he's not able to do that, then he does not have
standing in any way to raise anything about [Father]'s
fitness. So if that's needed to prove [Father]'s fitness,
but if he doesn't have standing, then there's no need to
have a continuance because it's not relevant. He does
haven't [sic] standing to raise that issue.

The Family Court's procedural analysis was right, as we
explained in section (3). The Family Court's mixed finding and
conclusion that N.B. is not entitled to custody under HRS
§ 571-46(a)(2) was not clearly erroneous. N.B. was not entitled
to a trial continuance to try to prove that Father was not a fit
parent.
N.B. also argued, for the first time in his motion for
reconsideration, that he "was unable to conduct meaningful
discovery and was unable to call several witnesses, all of whom
reside on Kauai" to testify about his "reputation and ability as
a father, and his emotional and educational support of" Child.
He listed six people and two categories of witnesses.
The Family Court made clear during the return hearing
on Father's petition that N.B.'s having de facto custody of Child
under HRS § 571-46(a)(2) was going to be an issue, and that A.A.
v. B.B. may apply. N.B. knew or should have known that he had to
show he had "de facto custody" of Child, a stable and wholesome
home, and that he was a fit and proper person.
N.B.'s trial witness list identified three of the six
people named in his motion for reconsideration — his mother,
father, and daughter. N.B. does not explain why he did not or
could not call them at trial, especially since the Family Court
allowed off-island witnesses to testify remotely.
The three new people named in the motion for
reconsideration were Child's maternal grandmother; the person who
"performed the behavior[al] and mental health evaluation" of

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Child; and N.B.'s "friend and coworker." N.B. does not explain
why they were not on his trial witness list even though he
clearly knew — or would have known if he had de facto custody of
Child — who they were.
The two witness categories named in N.B.'s motion for
reconsideration were "teachers and other professionals" at
Child's schools, and "the custodian of records at DHS and CWS
case workers involved with the cases relating to" Child. The
people who fit those categories were supposed to have personal
knowledge about N.B.'s "reputation and ability as a father, and
his emotional and educational support of" Child. N.B. does not
explain why, if he had de facto custody of Child, he needed to
conduct discovery to find out who these teachers and other
professionals were, or to what they would testify. Nor does he
explain what information the Department of Human Services or its
Child Welfare Services case workers would have other than reports
about him not having a stable and wholesome home, or that he was
not a fit and proper person to have custody of Child.
On this record, we cannot conclude that N.B. was
deprived of the opportunity to be heard at a meaningful time and
in a meaningful manner.
The December 23, 2024 Judgment of Paternity and Order
Regarding Custody is affirmed.
DATED: Honolulu, Hawai#i, December 19, 2025.

On the briefs:
/s/ Katherine G. Leonard
Georgia K. McMillen, Presiding Judge
for Respondent-Appellant N.B.
/s/ Keith K. Hiraoka
Benjamin E. Lowenthal, Associate Judge
for Petitioner-Appellee E.A.
/s/ Clyde J. Wadsworth
Associate Judge