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Js-L, Plaintiff-Appellant v. Is

April 19, 2013

JS-L, PLAINTIFF-APPELLANT,
v.
IS, DEFENDANT-APPELLEE



APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT (UCCJEA NO. 07-1-0003)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Nakamura, C.J., Foley and Reifurth, JJ.)

Plaintiff-Appellant JS-L ("Mother") appeals from the Order Denying Plaintiff's February 25, 2008 Motion for Sole Legal and Physical Custody of Minor Child, For Safeguards Upon Defendant's Visitation and Due Process Safeguards, filed January 12, 2010 ("January 12, 2010 Order Denying February 25, 2008 Motion re Custody, Visitation, and Safeguards") in the Family Court of the Fifth Circuit ("Family Court").*fn1

On appeal, *fn2 Mother asserts that the Family Court erred in: (1) refusing to grant Plaintiff's Motion for Therapeutic

Reunification, filed February 22, 2008 ("February 22, 2008 Motion for Therapeutic Reunification"); (2) denying Plaintiff's Rule 59(e) Motion to Reconsider, Alter & Amend June 10, 2008 Order on Motion for Therapeutic Reunification, and Repudiation of Purported Stipulation, filed June 13, 2008 ("June 13, 2008 Motion to Reconsider"); (3) "the terms of its order" regarding Plaintiff's Motion for Sole Legal and Physical Custody of Minor Child, For Safeguards Upon Defendant's Visitation and Due Process Safeguards, filed February 25, 2008 ("February 25, 2008 Motion re Custody, Visitation, and Safeguards"); (4) denying Plaintiff's Motion for Expert Assessment of Minor Child and for Leave to Conduct Investigation, filed February 25, 2008 ("February 25, 2008 Motion for Expert Assessment/Investigation"); (5) denying Plaintiff's Motion for Disqualification of Family Court Judge, filed November 18, 2008 ("November 18, 2008 Motion for Disqualification"); (6) denying Plaintiff's Motion to Strike Dr. Dianne Gerard's Report, filed November 19, 2008, "and various related oral motions" ("November 19, 2008 Motion to Strike"); (7) denying Plaintiff's Motion for Relief from Order on "Material Change in Circumstances" and Motion to Apply H.R.S. § 571-46 as Amended by Act 114 (2008), filed February 13, 2009 ("February 13, 2009 Motion for Relief from Order and to Apply HRS § 571-46"); (8) issuing its January 12, 2010 Order Denying February 25, 2008 Motion re Custody, Visitation, and Safeguards; and (9) rendering various FOF and COL in its Findings of Fact and Conclusions of Law, filed April 8, 2010 ("April 8, 2010 FOF/COL").

Upon careful review of the record and the briefs submitted by the parties, having given due consideration to the arguments advanced and the issues raised by the parties, and utilizing the grouping of the related points of error structure adopted by Mother in her opening brief to facilitate analysis, we resolve Mother's points of error as follows:*fn3

A. Issues related to Dr. Gerard (Points of Error 1, 2, 6, and 9)

Mother contends that the Family Court's refusal to allow her to call Dr. Gerard as a witness, to subpoena Dr. Gerard's records, and to take Dr. Gerard's deposition denied her the opportunity to contest Dr. Gerard's report ("Report") and to submit evidence related to the case.*fn4 Specifically, Mother contends that the court "did not allow any discovery of evidence" concerning HS, "and then held it against [Mother] that she produced no evidence."

Mother's claims with regard to Dr. Gerard ultimately fail for two reasons. First, Mother fails to draw any connection between the Family Court's decision to not allow discovery of Dr. Gerard and her Report and the court's ruling on the motion for which the Report was prepared. The Report was prepared specifically to address three very limited issues related to the February 22, 2008 Motion for Therapeutic Reunification. See supra note 4. Because neither party sought to re-schedule a hearing after receipt of the Report, the Family Court never ruled on the remainder of the motion. Therefore, Mother has established no connection between the Family Court's decision and any injury that Mother might have suffered.

Second, Mother is unable to demonstrate that the Report had any bearing on any other ruling in the case. With regard to the order from which the appeal is taken, and which is the focus of Mother's argument, the Family Court explained that the March 4, 2005 Findings and Order After Hearing ("March 4, 2005 Order") entered by the Superior Court of California, Marin County, was "the existing custody order in the case" and could not, therefore, be modified "unless there has been a material change in circumstances since the March 4, 2005 Order was entered and a modification of the March 4, 2005 Order is [determined to be] in [HS's] best interest." Since the Report was not introduced into evidence during the trial, the Family Court found that there was no need for it to consider, and it did not consider, the Report.*fn5 Consequently, Mother's due process right to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest was not implicated in this case by the Family Court's rulings concerning Dr. Gerard and her Report.

As to those FOF that relate to Mother's failure to introduce evidence, Mother does not explain what information she might have found if she had been permitted to examine or conduct discovery of Dr. Gerard. Nor does she describe why she believes that Dr. Gerard had knowledge of the information that she sought or why she could not introduce such information through the examination or discovery of other witnesses.

Therefore, the Family Court did not abuse its discretion in refusing to grant the February 22, 2008 Motion for Therapeutic Reunification; denying the June 13, 2008 Motion to Reconsider; denying the November 19, 2008 Motion to Strike; or in rendering FOF 22-25, 30, 78, 81, 83, 89, 92, 94, 100-01, 104-06, 109, 111, 113, 116, 120, 127, ...


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