Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

W.N. v. S.M.

Supreme Court of Hawaii

July 30, 2018

W.N., Petitioner-Appellant,
v.
S.M., Respondent-Appellee.

          APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-17-0000539; FC-M NO. 14-1-0034K)

          Michael S. Zola for petitioner.

          Timothy Luria Naoko C. Miyamoto Katherine M.M. Lukela for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         I. INTRODUCTION

         In our previous decision in this case, A.A. v. B.B., 139 Hawai'i 102, 384 P.3d 878 (2016), we vacated the final judgment of the family court denying the petition of A.A. (hereafter W.N.) for joint custody of a minor child with B.B. (hereafter S.M.). The case was remanded to the family court with instructions that it determine whether W.N. established a prima facie case of de facto custody, and if so, that the court render a custody award in the child's best interest.

         On remand, the family court entered an order without holding a further evidentiary hearing or taking additional evidence in which it found that W.N. was not a "fit and proper person" as required to establish a prima facie entitlement to custody of the minor child. W.N. appealed the family court's adverse ruling, and the request to transfer the case to this court was granted. We conclude that the family court erred in not holding a further hearing to ascertain whether W.N. is presently a fit and proper person and whether a custody award would be in the minor child's present best interests. Accordingly, we vacate the family court's 2017 Order and remand the case for a further evidentiary hearing consistent with this opinion. We also provide guidance as to evidentiary matters that may arise on remand.

         II. FACTS AND PROCEDURAL HISTORY

         W.N. and S.M. entered into a committed relationship in March 2009. In 2011, W.N. and S.M. jointly decided to bring S.M.'s newborn biological granddaughter (Child) into their home to raise her as their daughter. S.M. legally adopted Child, and S.M. and W.N. jointly shared parental care, duties, and responsibilities for Child. W.N., S.M., Child, and S.M.'s teenage son (Son) lived together as a family unit from October 2011 until October 2013. In October 2013, W.N. and S.M. separated, and they entered into a written 50/50 co-parenting agreement for Child. In April 2014, S.M. sent W.N. a letter declaring that he was revoking the 50/50 co-parenting agreement on the basis that it was his parental right to do so.

         In May 2014, W.N. filed a petition in the Family Court of the Third Circuit (family court) seeking joint legal and joint 50/50 physical custody of Child (custody petition) pursuant to Hawaii Revised Statutes (HRS) § 571-46(a) (2) (Supp. 2013), [1] W.N. asserted that he was the de facto parent of Child and was a fit and proper person to have care, custody, and control of Child. S.M. sought dismissal of the custody petition contending that W.N. was a legal stranger to Child, that HRS § 571-46(a)(2) was unconstitutional, and that W.N. had no standing before the family court.

         On October 3, 2014, the family court held an evidentiary hearing on the custody petition (2014 Hearing).[2] Scott and Janet Crosier (collectively, the Crosiers) testified that each had supervised visitations between W.N. and Child, and they favorably described the interactions between W.N. and Child. W.N. sought to introduce the visitation reports into evidence that the Crosiers had each prepared contemporaneously with the supervised visitations. The family court sustained S.M.'s objections to their admission because they contained hearsay statements of Child, rejecting W.N.'s argument that the statements were not offered for the truth of the matter asserted by Child. The court also sustained S.M.'s foundation objections to the Crosiers using their respective visitation reports to refresh their recollections. As to Janet Crosier, W.N. proffered that the reports would aid her in recalling Child's behaviors and interactions with W.N. that she could not remember.

         Dr. Jamuna Wyss, who was qualified as an expert in parent-child psychological relationships and parenting styles, testified that he taught W.N. parenting techniques. Dr. Wyss testified favorably as to W.N.'s relationship with Child. He also testified that Child would likely suffer "damaging psychological consequences" if W.N.'s relationship with Child was terminated. W.N.'s counsel asked Dr. Wyss if he was aware of any sexual abuse allegations against W.N. and sought to introduce a letter written by Dr. Wyss to Child Welfare Services. The court sustained S.M.'s objection to the admission of the letter and did not allow Dr. Wyss to testify as to his opinion on the allegations because it was outside the scope of his April 25, 2014 clinical note (clinical note) .[3] Dr. Wyss then testified generally that he did not believe W.N. posed any threat to Child.

         Additionally, W.N. sought to introduce progress notes from his individual therapy sessions with Dr. Wyss, as well as S.M. and W.N.'s couples therapy sessions with Dr. Wyss. The court again sustained S.M.'s objection to the introduction of the progress notes as outside the scope of Dr. Wyss's clinical note. Further, Dr. Wyss testified that he taught W.N. anger management techniques[4] and related that, in his opinion, W.N. had made progress on anger management.[5]

         Dr. Jennifer De Costa, a family counselor and a licensed marriage and family therapist, was called by S.M. and qualified as an expert in family behavior and relationships. Dr. De Costa testified that she had treated Son and regularly used written tests to assess Son's depression and anxiety in treatment. Dr. De Costa stated that she observed a correlation between fluctuations in Son's test scores and his interactions with W.N. S.M. asked Dr. De Costa if Son had displayed "extreme regression" since W.N. began visitation with Child, and Dr. De Costa responded affirmatively.

         Dr. De Costa testified that she also met with Child and initially had no concerns as to Child's development. After visits started with W.N., however, Dr. De Costa stated that Child began to exhibit "some regressive behaviors." Dr. De Costa answered "yes" when asked hypothetically whether she would have concerns about Child having a custodial relationship with W.N. given his anger management problem, her knowledge of W.N.'s relationship with Son, and Child's regressive behaviors. Dr. De Costa further testified that she did not think that termination of the relationship would harm Child.

         S.M. also called W.N.'s sister, C.N., to testify. C.N. testified that she had concerns about W.N.'s temper, which she had expressed to S.M., and that W.N.'s behavior had not improved.

         After the parties' arguments, the family court ruled that W.N. had not shown a compelling state interest as to why the de facto custody presumption of HRS § 571-46(a) (2) should apply to him under a strict scrutiny standard. The family court denied the custody petition and allowed S.M. to stop all visitations. On December 11, 2014, the family court entered findings of fact, conclusions of law, and its final judgment on the custody petition.

         W.N. appealed, and following transfer of the case to this court, we held that application of HRS § 571-46(a) (2) would not infringe upon S.M.'s fundamental liberty interests or right to privacy under the Hawai'i Constitution, and that W.N. was therefore not required to establish a compelling state interest as a prerequisite for the family court to make a de facto custody determination. A.A. v. B .B., 139 Hawai'i 102, 108, 113-16, 384 P.3d 878, 884, 889-92 (2016) . We noted that the record may support a finding that W.N. satisfied all elements of HRS § 571-46(a)(2), which would invoke the de facto custody presumption. Id. at 107 n.8, 384 P.3d at 883 n.8. Additionally, although this court held that any error by the family court in restricting Dr. Wyss's testimony or excluding the progress notes was harmless under the circumstances, we stated that "if further evidentiary proceedings are held on remand, the family court may revisit its ruling regarding the proffered evidence."[6] Id. at 116 n.23, 384 P.3d at 892 n.23. We vacated the final judgment denying W.N.'s custody petition and remanded the case to the family court with instructions that the court determine whether W.N. met the requirements for a de facto custody presumption pursuant to HRS § 571-46(a)(2), and if so, for a custody award in the child's best interest. Id. at 116-17, 384 P.3d at 892-93.

         At a status conference following remand, the family court indicated that it would limit its review to the existing record and invited the parties to provide briefing on whether it had authority for such limitation.[7] W.N. submitted a memorandum arguing that there was sufficient evidence in the record to determine that he met the elements for a de facto custody presumption and that an award of joint custody of Child to him would be in the best interests of Child. In the alternative, if the family court did not find that there was sufficient evidence to establish a de facto custody presumption, W.N. argued that an evidentiary hearing was necessary to supplement the 2014 Hearing record. In support, W.N. contended that his arguments and evidence presented at the 2014 Hearing were not focused on the elements of HRS § 571-46(a)(2) because the family court requested briefing on whether W.N. had a constitutional right and a statutory basis to assert a custodial claim.

         W.N. maintained that it would be error for the family court to conclude that he failed to meet his burden to establish that he is a "fit and proper person" without an opportunity to supplement the record, particularly in light of this court's observation that the record may support a finding that W.N. met all the elements of HRS § 571-46(a)(2). W.N. also argued that the family court foreclosed him from presenting evidence from Dr. Wyss to rebut allegations of sexual abuse that were used to determine W.N.'s fitness for custody. W.N. further argued that it would be a manifest injustice for the family court not to consider new evidence on remand regarding W.N.'s fitness for custody. As an offer of proof, W.N. stated that since the 2014 Hearing, he had obtained a State of Hawaii Department of Human Services foster care license, for which he underwent a psychosexual evaluation.

         S.M. filed a memorandum in support of limiting the family court's review on remand to the existing record. S.M. argued that whether or not W.N. was a fit and proper person must be determined as of the date of the 2014 Hearing because considering new evidence on remand would improperly afford W.N. a "second bite of the apple" and an opportunity to present improvements to "his situation" in order to increase his fitness for custody. Prior to holding a new evidentiary hearing, S.M. argued, the family court should determine from the existing record whether W.N. satisfied the elements of HRS § 571-46 (a) (2) for a de facto custody presumption.

         The family court ruled that it would base its review on the 2014 Hearing record to determine whether W.N. was entitled to a de facto custody presumption. The court stated that it would afford the parties an opportunity to raise any evidentiary objections, in writing, from their review of a video recording of the 2014 Hearing. W.N. reiterated the need to supplement the record in order to present evidence on events subsequent to the 2014 Hearing bearing upon the issue of whether he is a fit and proper person. The court indicated that it would take this argument under consideration.

         W.N. subsequently filed a petition raising objections to the exclusion of the Crosiers' visitation reports and Dr. Wyss's progress notes. Rather than excluding the Crosiers' visitation reports, W.N. argued, any hearsay statements therein could be redacted and the visitation reports could then be considered in determining W.N.'s entitlement to a de facto custody presumption and in rendering a custody award in the best interests of Child. In addition, W.N. objected to the exclusion of Dr. Wyss's progress notes and argued the court should permit Dr. Wyss to provide testimony to rebut the sexual abuse allegations against W.N. Dr. Wyss's testimony should address a letter he wrote to Child Welfare Services regarding the allegations, W.N. contended, and the letter should be admitted into evidence. S.M. filed a statement of no objection to limitation to the 2014 Hearing record on remand.

         The family court denied all of W.N.'s evidentiary objections. The court found that the Crosiers' visitation reports were hearsay and the Crosiers were allowed to testify, and that Dr. Wyss's progress notes were cumulative. The family court then determined that based upon its review of the 2014 Hearing record, W.N. had failed to establish a prima facie case under HRS § 571-46(a)(2) for a de facto custody presumption. Accordingly, the family court ruled that it would not be in the best interests of Child to award W.N. joint custody.

         On June 8, 2017, the family court entered its Findings of Fact and Conclusions of Law and Order (2017 Order). The family court found that a review of the transcripts and the audio and video recording of the 2014 Hearing enabled it to judge credibility and determine whether W.N. satisfied the elements of HRS § 571-46(a)(2). Based upon this evidence, the family court concluded that while W.N. met two of the three elements of HRS § 571-46(a)(2), he did not meet his burden as to the "fit and proper person" statutory element because of (1) his undisputed anger management problem and (2) Dr. De Costa's and C.N.'s unfavorable testimony, including Dr. De Costa's testimony as to Child's regression and Son's performance on psychological tests and "extreme regression." The family court thus denied W.N.'s custody petition.

         W.N. timely filed a Notice of Appeal from the 2017 Order. The case was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.