J.D. v. D.D.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-MAR-2024
07:53 AM
Dkt. 67 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

J.D., Plaintiff-Appellee,
v.
D.D., Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(KONA DIVISION)
(CASE NO. 3DV19100038K)

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

Defendant-Appellant DD nka DG (Mother) appeals from a

November 1, 2021 post-decree order entitled Order Re: (1)

Defendant's Motion for Change of Custody to Joint, Physical &

Legal Custody Filed March 21, 2021; (2) Defendant's Motion to

Change Therapist Filed July 9, 2021; and (3) Defendant's Motion

to Set Aside "Order Granting Plaintiff's Emergency Motion to

Restrict Defendant's Visitation" Filed October 15, 2020 and

"Order Regarding November 9, 2020 Hearing" Filed December 18,

2020 Pursuant to [Hawai#i Family Court Rules (HFCR) Rule 60(b)]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Filed July 9, 2021 (Post-Decree Order), entered by the Family

Court of the Third Circuit, Kona Division (Family Court).1

The Family Court granted a decree of divorce to

Plaintiff-Appellee JD (Father) in the September 24, 2019 Findings

and Order After Partial Trial on September 19, 2019; Exhibits A &

B (Divorce Order).2 In the Divorce Order, the Family Court

continued the issues of custody and visitation. On April 7,

2020, the Family Court entered its Divorce Decree (With Children)

(Divorce Decree),3 awarding Father legal and physical custody of

the Children, with supervised visitation to Mother, as specified

in the Divorce Decree. Mother did not file an appeal from the

Divorce Decree.

Mother raises seven points of error on appeal,

contending that the Family Court: (1) erred and abused its

discretion when denying her HFCR Rule 60(b) motion to set aside

previous orders; (2) erred and violated Mother's constitutional

rights when the court denied her the opportunity to appointed

counsel or to retain counsel, or both; (3) erred and abused its

discretion when in the Post-Decree Order, it continued supervised

visits; (4) erred when it determined that there was a finding

Mother committed family violence; (5) erred and abused its

discretion when it allowed Guardian ad Litem (GAL) Joanna Sokolow

(Sokolow) to testify as to custody and visitation

recommendations; (6) abused its discretion when it denied

1
The Honorable Jill M. Hasegawa presiding.
2
The Honorable Wendy M. DeWeese presided.
3
The Honorable Wendy M. DeWeese presided.

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Mother's motion for joint legal custody and/or access to the

Children's school and school records; and (7) erred and abused

its discretion when it ordered the Children to continue their

individual therapy with Nancy Sallee (Sallee) until Children were

clinically discharged and denied Mother's motion to change the

Children's therapist.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, as well as the
relevant legal authorities, we address Mother's points of error

as follows:

As noted above, Mother did not file an appeal from the

Divorce Decree which awarded Father custody and granted Mother

limited visitation. However, several post-decree motions were

filed, followed by Mother's Rule 60(b) Motion and the Post-Decree

Order that is the subject of this appeal.4

(1) Mother contends that the Family Court abused its

discretion and erred when it declined to set aside two prior

post-decree orders temporarily limiting Mother's visitation with

the Children. The Family Court entered these orders temporarily

limiting Mother's visitation with the Children after receiving,

inter alia, recommendations from the Children's therapist and

alarming reports regarding Mother's behavior and the Children's

well-being. After the reappointment of the GAL who had

4
We note that on September 20, 2022, the Family Court entered a
Stipulated Order Regarding Custody, providing that the parties will share
joint physical and legal custody of the Children, effectively granting Mother
the substantive relief regarding custody that she sought in various
post-decree motions leading to the Post-Decree Order.

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previously served in this case, visitation was incrementally

reinstated, and ultimately restored to twice weekly supervised

visitation, in addition to certain Facetime visitation. The

interim orders were entered after notice and hearings at which

Mother participated. Under the circumstances of this case,

Mother's contentions that the interim orders violated her due

process and parental rights is wholly without merit.

(2) Mother contends that the Family Court violated her

constitutional rights when it proceeded with the September 14,
2020 hearing without allowing her to first retain or be appointed

counsel. Upon review of the hearing transcript, Mother

repeatedly objected to being unrepresented, but did not seek a

continuance to retain counsel, instead arguing that she could not

afford to hire an attorney. On appeal, Mother contends that the

right to counsel in child welfare cases for indigent parents

should be extended to indigent parents, inter alia, in all

custody cases. There is no basis for this court to grant

Mother's request.

(3) Mother contends that the Family Court erred in the

Post-Decree Order when it continued supervised visits without

findings of fact or an adequate basis in the record that Mother

was unable to act in the best interest of the Children.

As noted above, in the Divorce Decree, the Family Court

granted legal and physical custody of the Children to Father,

with supervised visitation to Mother. Mother's request for

discontinuation of supervision of her visitation was a request

for a modification of the custody award. Hawaii Revised Statutes

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(HRS) § 571-46(a)(6) (2018) provides that "[a]ny custody award

shall be subject to modification or change whenever the best

interests of the child require or justify the modification or

change[.]" See generally Waldecker v. O'Scanlon, 137 Hawai#i

460, 375 P.3d 239 (2016).

Mother argues variously that the Family Court erred and

abused its discretion in continuing supervised visitation, but

makes no cogent argument that it was in the best interest of the

Children to modify the custody award set forth in the Divorce
Decree. We conclude that Mother's third point of error is

without merit.

(4) Mother argues that the Family Court erred at the

September 15, 2021 hearing on Mother's motion for post-decree

relief because the Family Court stated that there was a finding

of family violence, which raises a rebuttable presumption against

placing the Children in joint custody with the perpetrator of

violence, which was previously established by the court. Mother

contends that there was no opportunity to bring this error to the

Family Court's attention prior to the court's order. It appears,

however, that there was ample back and forth between Mother's

attorney and the Family Court after the court made this part of

its oral explanation for its denial of Mother's request for

significant modification of the custody and visitation order. No

objection was made, and this issue was not brought to the Family

Court's attention. Therefore, pursuant to Hawai#i Rules of

Appellate Procedure Rule 28(b)(4)(iii), this point of error will

be disregarded.

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(5) Mother argues that the Family Court erred and

abused its discretion by allowing Sokolow to testify beyond the

scope of her report and to testify as to custody and visitation

recommendations at the September 15, 2021 evidentiary hearing.

While a GAL may be appointed to represent the best interest of a

child pursuant to HRS § 571-46(a)(8), a GAL may only offer

recommendations of child custody if they meet the requirements of

a child custody evaluator under HRS § 571-46.4 (2018).5 The

statute requires the child custody evaluator to meet certain
credentialing requirements. Id.

Here, however, Sokolow did not testify or render any

opinion as to custody, and the Family Court did not allow Sokolow

to testify as to custody or visitation recommendations. Sokolow

5
HRS § 571-46.4 provides, in pertinent part:
§ 571-46.4 Child custody evaluators;
qualification; registry; complaints. (a) A person may
be appointed as a child custody evaluator for purposes
of section 571-46 if the person is actively licensed
as a:
(1) Physician under chapter 453 and is a board
certified psychiatrist or has completed a
residency in psychiatry;
(2) Psychologist under chapter 465;
(3) Marriage and family therapist under
chapter 451J; or
(4) Clinical social worker under section
467E-7(3).
(b) A person may be appointed as a child custody
evaluator in the absence of a license under subsection
(a) if:
(1) The individual has obtained education and
training that meet nationally recognized
competencies and standards of practice in
child custody evaluation; provided that
there are no child custody evaluators
enumerated under subsection (a) who are
willing and available, within a reasonable
period of time, to perform child custody
evaluations; or
(2) The parties stipulate to a person who does
not qualify as a child custody evaluator
under subsection (a) and the court
approves that person as a fact-finding
investigator to the court.

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testified solely to the comments and personal observations that

she documented in her first, second, and updated reports. In

those reports, Sokolow did not make recommendations as to whether

joint custody should be awarded and only commented on how the

Children would respond to increased visitation.

For example, in the updated report, Sokolow states that

"[v]isitation could be increased incrementally" because it would

"allow for more enjoyable experiences for the children." This is

not an opinion as to how the issue of visitation should be
resolved. On cross-examination, Mother's counsel asked, "is it

your position that it's the best interest of the children that

supervised visits should go on indefinitely," in response to

which Sokolow stated that it would not be in their best interest.

Sokolow did not testify that she recommended the court should or

should not continue supervised visits; rather, Sokolow answered

counsel's question.

Mother does not point to any specific testimony in

which Sokolow testified outside the scope of her reports.

We conclude that the Family Court did not abuse its

discretion or err in permitting Sokolow's testimony.

(6) Mother argues that the Family Court abused its

discretion when it denied Mother's motion for joint legal custody

and/or access to the Children's school and school records. We

take judicial notice of the fact that on September 20, 2022,

Mother has since been awarded joint legal custody. Therefore,

this court can no longer grant effective relief and this issue is

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moot. See, e.g., Bank of N.Y. Mellon v. R. Onaga, Inc., 140

Hawai#i 358, 365-66, 400 P.3d 559, 566-67 (2017).

(7) Mother argues that the Family Court erred and

abused its discretion when it ordered the Children to remain in

therapy with Sallee until clinically discharged. We take

judicial notice of the fact that on September 20, 2022, the

parties agreed and the Family Court ordered, inter alia, that

Sallee be discharged. Therefore, this court can no longer grant

effective relief and this issue is moot.
In accordance with the above, to the extent that

Mother's appeal from the November 1, 2021 Post-Decree Order is

moot, this appeal is dismissed; the November 1, 2021 Post-Decree

Order is otherwise affirmed.

DATED: Honolulu, Hawai#i, March 27, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Michael S. Zola,
for Defendant-Appellant. /s/ Sonja M.P. McCullen
Associate Judge

/s/ Kimberly T. Guidry
Associate Judge

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