SC v. JC. ( 2022 )


Menu:
  •  FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    14-APR-2022
    07:48 AM
    Dkt. 63 OP
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    –––O0O–––
    SC, Petitioner, v.
    JC, Respondent-Appellant
    and
    TG and AG, Intervenors-Appellees
    NO. CAAP-XX-XXXXXXX
    APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
    (UCCJEA NO. 20-1-6004)
    APRIL 14, 2022
    GINOZA, C.J., AND WADSWORTH AND McCULLEN, JJ.
    OPINION OF THE COURT BY WADSWORTH, J.
    Self-represented Respondent-Appellant JC (Father)
    appeals from the "Order Re: [Father's] Motion & Declaration for
    Post-Decree Relief Filed 2/25/20" (Order Denying Relief), entered
    on September 18, 2020, in the Family Court of the First Circuit
    (Family Court).1/ Father's February 25, 2020 Motion and
    Declaration for Post-Decree Relief (Post-Decree Motion) sought
    modification of a Colorado court's order granting self-
    represented Intervenors-Appellees TG and AG's (Maternal
    Grandparents) motion for visitation of their grandchildren, who
    1/
    The Honorable Elizabeth Paek-Harris presided.
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    are the two minor children (Children) of Father and Petitioner SC
    (Mother).2/   Following an August 28, 2020 evidentiary hearing,
    the Family Court denied Father's Post-Decree Motion.
    On appeal, Father contends that the Order Denying
    Relief: (1) infringed upon Father's fundamental parental rights,
    as protected by the due process clause of the Fourteenth
    Amendment to the United States Constitution; (2) failed to uphold
    "the special weight standard" imposed by Hawaii Revised Statutes
    (HRS) § 571-46.3(2), quoted infra; and (3) violated HRS § 578-16,
    quoted infra.     Father also challenges Findings of Fact (FOFs)
    135, 140 through 143, 145, 146, and 149 of the Family Court's
    Findings of Fact and Conclusions of Law (FOFs/COLs), entered on
    January 29, 2021.
    In Doe v. Doe, 116 Hawai#i 323, 
    172 P.3d 1067
     (2007),
    the Hawai#i Supreme Court declared the state's grandparent
    visitation statute, HRS § 571-46.3, quoted infra, facially
    unconstitutional, because it did not include the "harm to the
    child" standard required by the right to privacy under article I,
    section 6 of the Hawai#i Constitution. Id. at 336, 
    172 P.3d at 1080
    . The court ruled that "proper recognition of parental
    autonomy in child-rearing decisions requires that the party
    petitioning for visitation demonstrate that the child will suffer
    significant harm in the absence of visitation before the family
    court may consider what degree of visitation is in the child's
    best interests." 
    Id.
     at 335–36, 
    172 P.3d at
    1079–80.
    We hold that Doe's harm-to-the-child standard applies
    in the circumstances of this case, where Father, as a custodial
    parent whose fitness has not been challenged, seeks to modify a
    visitation order entered in favor of non-parent third parties,
    i.e., Maternal Grandparents. We further hold that Maternal
    Grandparents have satisfied the harm-to-the-child standard in the
    unique circumstances of this case, where the Family Court entered
    extensive findings of fact that the Children would suffer
    significant harm if the visitation order were modified as
    requested. The Family Court also correctly concluded that the
    2/
    Mother is now deceased, Father has remarried, and Father's wife
    (Adoptive Mother) has adopted the Children.
    2
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    weight of the evidence on Maternal Grandparents' side was
    sufficient to overcome the rebuttable presumption in favor of
    Father's request to modify visitation. See Troxel v. Granville,
    
    530 U.S. 57
    , 68-70 (2000) (plurality opinion).
    Father's remaining arguments, to the extent not waived,
    are without merit. Accordingly, we affirm the Order Denying
    Relief.
    I.   Background
    The following FOFs by the Family Court, among others,
    are unchallenged on appeal and are thus binding on the parties
    and this court, see State v. Rodrigues, 145 Hawai#i 487, 494, 
    454 P.3d 428
    , 435 (2019):
    1.    Father and [Mother] were married but separated
    in 2011.
    2.    Father and Mother divorced pursuant to the
    Decree of Dissolution of Marriage entered in the District
    Court El Paso County, Colorado [(the Colorado Court)] on
    January 14, 2016 ("Decree").
    3.    The parties have two (2) minor children . . .
    (collectively "the children").
    4.    The Colorado Court entered the following
    findings as set forth in the Decree:
    . . . .
    Mother will enjoy sole decision making, primary
    residential responsibilities, or, in other words, sole
    custody for [the children]. She may determine the
    terms of parenting time between the children of the
    marriage and their father.
    5.    Subsequently, Mother tragically died in a
    traffic accident [in October] 2017.
    . . . .
    7.    On March 6, 2018, Maternal Grandparents filed a
    Motion for Grandparent Visitation in Colorado ("3/6/18
    Motion for Grandparent Visitation").
    . . . .
    10.   On October 3, 2018, the Colorado Court entered
    its Order Re Motion for Grandparent Visitation ("10/3/18
    Visitation Order").
    11.   The Colorado Court entered the following
    findings in the 10/3/18 Visitation Order:
    . . . .
    3
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    c.    The Colorado Court must begin with the
    presumption that the parent's determination of
    grandparent visitation is in the best interest of the
    children. That presumption is rebuttable with facts
    and evidence which establish by clear and convincing
    evidence that (a) the parent is unfit or (b) the
    parent's determination of parenting time is not in the
    best interest of the children.
    d.    There have been no allegations of
    unfitness of Father. . . .
    . . . .
    f.    Following the parents' separation [in
    2011], Mother was the primary parent and exercised the
    majority of the parenting time.
    g.    Mother was awarded sole decision-making
    responsibility for the children, with parenting time
    for Father as determined by Mother . . . .
    . . . .
    j.    Father's parenting time was limited before
    Mother's death [in October 2017].
    k.    Maternal Grandparents had been very
    involved in the children's lives since between 2013
    and 2017, and had the children two (2) to three (3)
    days per week during the school year and five (5)
    times per week during the summer.
    1.    Father was living in Ohio or Hawaii during
    this period and had limited contact with the children.
    . . . .
    r.    This is an unusual situation.
    s.    Mother is deceased, and the children are
    presently with Father, who had limited contact with
    them prior to Mother's death.
    t.    Maternal Grandparents have played a very
    important role in the children's lives and provide an
    essential link to the maternal side of the family.
    u.    The children are still grieving. Father
    has placed the children in therapy and they are
    improving. However, it doesn't follow that Maternal
    Grandparents' contact with the children should be
    limited.
    v.    Maternal Grandparents need to be an active
    presence in the children's lives. They have always
    been in the children's lives and they are a link to
    the maternal side of the family. Contact with
    Maternal Grandparents is necessary for the emotional
    health of the children and to aid in the grieving
    process.
    . . . .
    x.    Father is providing stability for the
    children and Maternal Grandparents are an essential
    part of their emotional health.
    4
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    y.    The Colorado Court finds that Maternal
    Grandparents have met their burden by clear and
    convincing evidence in that Father's determination of
    grandparent visitation is not in the children's best
    interests and that their request for grandparent
    visitation is in the children's best interests.
    . . . .
    (Footnotes omitted.)
    The Family Court concluded that the Colorado Court, in
    entering the 10/3/18 Visitation Order, had considered and applied
    the United States Supreme Court's decision in Troxel, 
    530 U.S. 57
    , as well as the relevant statutes and case law in Colorado,
    "when it entered findings that the children would suffer
    significant harm in the absence of visitation with Maternal
    Grandparents before it considered what degree of visitation was
    in the children's best interests." The Colorado Court granted
    Maternal Grandparents the following grandparent visitation
    schedule, subject to certain conditions and contingencies: one
    week in the spring from March 17 to March 23 each year; one week
    for Christmas from December 30 to January 5 each year; and two
    weeks in the summer from July 1 to July 14 each year. Father was
    to "deliver and receive the minor children from Maternal
    Grandparents at the departure and arrival gates at the airport in
    Hawaii." Maternal Grandparents were granted visitation "in
    Hawaii unless Maternal Grandmother or Maternal Grandfather are
    able to travel with the minor children to and from Colorado."
    There is no evidence in the record that the 10/3/18
    Visitation Order was ever appealed in Colorado. The Family Court
    concluded that the 10/3/18 Visitation Order was a valid and
    enforceable order.
    On February 25, 2020, Father registered the 10/3/18
    Visitation Order and other documents from the Colorado Court, in
    the Family Court, pursuant to HRS § 583A-305. On the same day,
    Father filed the Post-Decree Motion seeking to modify the 10/3/18
    Visitation Order by restricting Maternal Grandparents' visitation
    with the Children to "where the [C]hildren reside[,]" i.e.,
    Hawai#i. Father asserted in the Post-Decree Motion that the
    change in visitation was appropriate because: (a) "[t]he
    [C]hildren have resided in the [S]tate of Hawaii for over 2
    5
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    years"; and (b) "[d]uring [the Children's] last visit with
    [Maternal Grandparents, Maternal Grandparents] failed to return
    the children in a timely manner pursuant to the court order
    creating a lot of panic and confusion for the [C]hildren."
    Father also requested that telephone visits between Maternal
    Grandparents and the Children "be scheduled around the
    [C]hildren[']s activities because it's become difficult for the
    [C]hildren to comply during the court ordered hours and the
    [C]hildren do not want to stay on the phone for a whole hour."
    Further, Father contended that Hawai#i should have jurisdiction
    in this matter because: (a) the Children have resided in Hawai#i
    for over two years; (b) "[b]oth parents and all information
    regarding [the Children's] care and well being exist here in
    Hawaii"; and (c) Colorado is an inconvenient forum.
    On April 28, 2020, the Colorado Court communicated with
    the Family Court pursuant to HRS § 583A-110, as reflected in the
    Family Court's "Record of Communication Between Courts," filed on
    May 6, 2020. The Colorado Court stated that it believed that
    Hawai#i has home state jurisdiction under the Uniform Child-
    Custody Jurisdiction and Enforcement Act (UCCJEA), and that
    Colorado no longer has continuing, exclusive jurisdiction, as no
    party resides in Colorado. The Colorado Court informed the
    Family Court that it was relinquishing jurisdiction to Hawai#i.
    The Family Court stated that jurisdiction would be in Hawai#i
    under the UCCJEA, but that the presiding judge would further
    address the matter at the hearing.
    On May 21, 2020, the Family Court held the first
    hearing on Father's Post-Decree Motion. At the hearing, the
    court found and ordered, among other things, that Hawai#i has
    jurisdiction under the UCCJEA, and the hearing would be continued
    to July 8, 2020, to allow the parties to mediate prior to
    proceeding with the Post-Decree Motion.3/ Mediation was
    unsuccessful and, at a July 8, 2020 hearing, the Family Court
    3/
    FOF 25 states that "Colorado no longer had continuing, exclusive
    jurisdiction as none of the parties resided in the State of Colorado, Colorado
    relinquished jurisdiction, Father asserted Hawaii had jurisdiction as he and
    the [C]hildren resided in Hawaii, and Maternal Grandparents did not contest
    Hawaii jurisdiction."
    6
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    ordered that the hearing be continued to August 28, 2020, for an
    extended evidentiary hearing. The parties agreed to modify
    Maternal Grandparents' telephone/video visits to: (a) telephone
    visits every other Sunday starting July 12, 2020, from 3-4 p.m.,
    and (b) video visits every other Sunday starting July 19, 2020,
    from 3-4 p.m.
    On August 28, 2020, the Family Court held the extended
    evidentiary hearing on Father's Post-Decree Motion. Father,
    Adoptive Mother, and a Hawai#i-licensed therapist testified on
    behalf of Father. Two of Maternal Grandparents' Colorado family
    members, as well as maternal grandmother TG, testified for
    Maternal Grandparents. Multiple exhibits were received into
    evidence.
    On September 18, 2020, the Family Court entered the
    Order Denying Relief, and on January 29, 2021, the Family Court
    filed the FOFs/COLs. The FOFs stated in part:
    40.   Father's request does not constitute such a
    change in circumstances that modification of the valid and
    enforceable 10/3/18 Visitation Order is in the best
    interests of the children.
    41.   At the time of the entry of the valid and
    enforceable 10/3/18 Visitation Order, the children were
    already residing in Hawaii.
    42.   The fact that the children lived in Hawaii
    longer than they had at the time of the valid and
    enforceable 10/3/18 Visitation Order is not a change in
    circumstances such that modification of the valid and
    enforceable 10/3/18 Visitation Order is in the children's
    best interests.
    43.   As for Father's second basis for requesting
    modification of the valid and enforceable 10/3/18 Visitation
    Order in which he claims that during Maternal Grandparents'
    last visit with the children in July 2019 they "failed to
    return the children in a timely manner pursuant to the court
    order creating a lot of panic and confusion for the
    children" - this also does not constitute a change in
    circumstances such that modifying their visits to be
    exercised only in Hawaii or their residential area with
    Maternal Grandparents would be in the children's best
    interest.
    . . . .
    53.   There was good cause for the delay in Maternal
    Grandparents' untimely return of the children to Father in
    Hawaii in July 2019.
    54.   During Maternal Grandparents' visit with the
    children in July 2019 in Colorado, Maternal Grandmother
    notified Father on July 13, 2019 that she may need to delay
    7
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    her flight with the children to return to Hawaii on July 14,
    2019 due to an unexpected medical emergency where she was
    admitted into the hospital with an acute diverticuli flare
    up.
    55.   In the same email on July 13, 2019, Maternal
    Grandmother also notified Father that (a) the children were
    fine and at home with Maternal Grandfather, (b) she tried to
    switch the flights so Maternal Grandfather could travel with
    the children back to Hawaii instead of herself, but the
    airlines would not allow her to transfer her ticket to
    Maternal Grandfather, and (c) she should be released that
    day but would need to wait a few days to be on oral
    antibiotics before flying.
    . . . .
    58.   Father unreasonably demanded that Maternal
    Grandmother return the children as originally planned
    without any justifiable reason.
    . . . .
    62.   Maternal Grandmother returned the children to
    Father in Hawaii on July 18, 2019.
    . . . .
    64.   There was an unexpected, unintentional and
    unforeseen change in circumstances that caused a slight four
    (4) day delay in Maternal Grandparents' timely return of the
    children to Father in July 2019.
    65.   Maternal Grandparents made their best effort to
    return the children to Father as soon as practically
    possible.
    66.   Notwithstanding, Father filed a complaint for
    custodial interference with the Honolulu Police Department
    ("HPD") against Maternal Grandparents on July 14, 2019 that
    was unwarranted and unnecessary.
    . . . .
    68.   Father also contacted the local sheriff's
    department in Colorado to enforce the valid and enforceable
    10/3/18 Visitation Order, and requested the sheriffs in
    Colorado to check on the children at Maternal Grandparents'
    home, even though he received detailed notice from Maternal
    Grandparents regarding the delay in the return of the
    children to Father in Hawaii and that the children were
    safe.
    69.   There was no reason for Father to believe that
    the children were not safe.
    70.   The only plausible reason for Father to have
    responded in the unreasonable manner that he did was to
    create an unfair advantage for him to seek modification of
    the valid and enforceable 10/3/18 Visitation Order, which he
    had repeatedly been attempting to do unsuccessfully since
    the Colorado Court entered it.
    71.   Father's actions subjected the children to
    unnecessary harm and conflict by involving the sheriff's
    department in Colorado.
    8
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    . . . .
    114.   Father is married to [Adoptive Mother].
    115. [Adoptive Mother] legally adopted the children
    on May 23, 2018.
    . . . .
    125. The Court did not find Father and [Adoptive
    Mother's] testimony credible.
    126. Maternal Grandparents are elderly and for them
    to travel will become more difficult for them as they
    continue to age.
    127. The children are getting older and for them to
    travel will become easier for them in the future.
    128. The valid and enforceable 10/3/18 Visitation
    Order states that when the children are older and Father
    believes they can travel with an airline escort, they will
    no longer need to travel with Maternal Grandparents.
    129. Maternal Grandparents and Mother's family are
    the only ties and connection the children have to their
    Mother, now deceased, who was also once their primary
    caretaker.
    130. Maternal Grandparents had substantial and
    emotional ties to the children throughout their life with
    Mother until Father assumed custody after Mother passed away
    three (3) years ago.
    131. Maternal Grandparents' relationship with the
    children goes beyond having a mere positive influence on
    them.
    132. The children will suffer significant harm in the
    absence of visitation with Maternal Grandparents in
    Colorado.
    133. Colorado was the children's home where they
    lived with Mother and were raised for most of their life
    before they moved to Hawaii a few years ago.
    134. Most of the children's extended family on
    Mother's side, including one (1) of their half-siblings
    reside in Colorado.
    135. The children's other half-sibling lives in
    Texas, but visits Colorado. Maternal Grandparents do not
    have authority to travel to Hawaii with the children's
    half-sibling who lives in Texas.
    . . . .
    138. Serious harm would result to the children given
    Father's motivation to limit and restrict Maternal
    Grandparents' visits with the children to Hawaii only.
    139. The level of harm    is of the magnitude that
    justifies overruling Father's   proposed request to modify the
    valid and enforceable 10/3/18   Visitation Order restricting
    the location of the visits to   Hawaii.
    9
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    140. Father and [Adoptive Mother] are using the
    children as pawns based on their own personal conflict and
    resentment towards Mother's family in which the children
    should not suffer as a result.
    141. Father and [Adoptive Mother] are not acting out
    of the best interests of the children, but instead, seek to
    advance their own personal agenda by using the children
    against Maternal Grandparents and attempting to restrict
    their visits to Hawaii only.
    142. Father and [Adoptive Mother] are attempting to
    diminish the relationship between the children and Maternal
    Grandparents as opposed to supporting and maintaining a
    relationship between them.
    143. There was a history of domestic violence in the
    relationship between Mother, the children and Father in
    which Father was the perpetrator.
    . . . .
    146. Father's history of domestic violence against
    Mother and [younger daughter] has caused some of the tension
    and conflict between Father and Maternal Grandparents.
    147. The conflict escalated when [Adoptive Mother]
    legally adopted the children, and injected herself in the
    middle of communications between the children and Maternal
    Grandparents.
    148. Due to the growing conflict between Father,
    [Adoptive Mother] and Maternal Grandparents, Father is
    attempting to sever the children's ties with Maternal
    Grandparents and Mother's family.
    149. Father is not acting in the best interests of
    the children in attempting to sever this critical
    relationship . . . .
    150. Given the strong and close relationship and bond
    between Maternal Grandparents and the children, and Father's
    motivation to sever ties between the children and Maternal
    Grandparents due to the personal conflict between him,
    [Adoptive Mother] and Maternal Grandparents, the overall
    weight of the evidence on Maternal Grandparents' side is
    sufficient to overcome any rebuttable presumption in favor
    of Father's request to modify visitation.
    151. There is clear and convincing evidence that
    Maternal Grandparents are acting in the best interests of
    the children.
    152. There is clear and convening evidence that
    modifying the valid and enforceable 10/3/18 Visitation Order
    to limit Maternal Grandparents' visitation would be harmful
    to the children.
    153. It is in the best interests of the children to
    enforce the provisions of the valid and enforceable 10/3/18
    Visitation Order.
    (Footnotes omitted.)
    10
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    II.   Discussion
    A. Father's Parental Rights
    Father contends that the Family Court infringed upon
    his fundamental parental rights, as protected by the due process
    clause of the Fourteenth Amendment, "simply because [the Family
    Court] believes a 'better' decision could be made." In this
    regard, Father argues that FOFs 145 and 146 are not supported by
    substantial evidence.
    FOFs 143 through 146, as well as FOF 154a, concern
    Father's history of domestic violence. The Family Court found
    the following:
    143. There was a history of domestic violence in the
    relationship between Mother, the children and Father in
    which Father was the perpetrator.
    144. The children's grief counselor, Ms. Bagford,
    states in her letter dated February 22, 2018 that she worked
    with [younger daughter] weekly since August 2017 on "feeling
    identification and regulation, psychoeducation around
    domestic violence and safety as well as work around grief
    and loss."
    145. Further, in the parties' divorce case filed
    earlier in FC-D No. 13-1-6897, prior to the parties filing
    for divorce in Colorado, the Hawaii Family Court entered the
    following findings in paragraph 1 of its "Order Denying
    Plaintiff's Motion for Pre-Decree Relief Filed May 28, 2013
    and Granting in Part and Denying in Part Defendant's Motion
    for Pre-Decree Relief Filed July 12, 2013" [( August 30, 2013
    Order)]:
    Viewed from the standpoint of the best interests of
    the children, the Court finds that an award of sole
    physical custody of the minor children to MOTHER is in
    the children's best interests. The Court awards each
    of the parties joint legal custody of the minor
    children. The children have resided with MOTHER in
    Colorado since December, 2012; the Court finds that
    MOTHER has been the primary caregiver for the children
    over the majority of their lives. FATHER has failed
    to rebut the Court's finding that he engaged in
    domestic violence against MOTHER in January, 2013 and
    therefore, an award of legal and physical custody to
    MOTHER is appropriate (emphasis added).
    146. Father's history of domestic violence against
    Mother and [younger daughter] has caused some of the tension
    and conflict between Father and Maternal Grandparents.
    . . . .
    154. In addition to all of the factors already noted
    herein, the Court enters the following additional factors
    considered in applying the best interests of the children
    standard enumerated in HRS §571-46(b):
    11
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    a.    As noted   herein, there is a   history of
    domestic violence by   Father and against   Mother, where
    one of the children,   [younger daughter]   was also
    involved, which also   included emotional   abuse.
    (Footnotes omitted.)
    Findings of fact are reviewed under the clearly
    erroneous standard and will not be overruled unless:
    (1) the record lacks substantial evidence to support the
    finding, or (2) despite substantial evidence in support of
    the finding, the appellate court is nonetheless left with a
    definite and firm conviction that a mistake had been made.
    'Substantial evidence' is credible evidence which is of
    sufficient quality and probative value to enable a person of
    reasonable caution to support a conclusion.
    LC v. MG, 143 Hawai#i 302, 310, 
    430 P.3d 400
    , 408 (2018) (quoting
    Fisher v. Fisher, 111 Hawai#i 41, 46, 
    137 P.3d 355
    , 360 (2006)).
    We first note that Father does not challenge FOFs 143
    144, and 154a, which are thus binding on this court. Rodrigues,
    145 Hawai#i at 494, 454 P.3d at 435. Regarding FOFs 145 and 146,
    Father asserts generally that "no substantial evidence . . .
    verifies the claims of abuse; all accusations are unfounded and
    clearly erroneous."
    In FOF 145, the Family Court quotes from the August 30,
    2013 Order entered by the Family Court in the parties' separate
    divorce proceeding, which was initiated in Hawai#i in 2013 before
    the filing of the divorce proceeding in Colorado.4/ The
    August 30, 2013 Order was entered into evidence as Maternal
    Grandparents' Exhibit 23 at the August 28, 2020 evidentiary
    hearing. At that time, Father asserted that Exhibit 23 was
    "irrelevant" and also stated, "I don't disagree that it's a court
    order, but it wasn't due to domestic violence that it was filed .
    . . ." There is no indication in the record, however, that
    Father ever challenged the Family Court's domestic violence
    finding by appealing from a final order in the Hawai#i divorce
    proceeding. Nor does Father contend that FOF 145 misquotes the
    August 30, 2013 Order. We thus conclude there is substantial
    evidence to support FOF 145, and we are not left with a definite
    and firm conviction that a mistake has been made.
    4/
    It appears that the Hawai#i divorce proceeding was dismissed in
    2014.
    12
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    FOF 146 appears to be based on FOFs 143 through 145,
    which concern Father's history of domestic violence, and FOFs 118
    through 121, and 154bb and 154ii, which concern the conflict
    between Father and Adoptive Mother on one side, and Maternal
    Grandparents and Mother's family on the other. Father has not
    challenged any of these FOFs supporting FOF 146, except for FOF
    145, which we have concluded is not clearly erroneous. Based on
    our review of the record, we conclude there is substantial
    evidence to support FOF 146, and we are not left with a definite
    and firm conviction that a mistake has been made.
    Father also argues more generally that he has not been
    found to be an "unfit" parent, and the Order Denying Relief
    infringes on his fundamental parental right to make child-rearing
    decisions.
    The Hawai#i Supreme Court recently reiterated:
    [A] parent's right to the "care, custody and control" of his
    or her child is a fundamental liberty interest protected by
    the United States Constitution. Troxel v. Granville, 
    530 U.S. 57
    , 65, 
    120 S. Ct. 2054
    , 
    147 L. Ed. 2d 49
     (2000)
    ("[T]he interest of parents in the care, custody, and
    control of their children is perhaps the oldest of the
    fundamental liberty interests recognized by this Court.").
    This court has also recognized that independent of the
    United States Constitution "parents have a substantive
    liberty interest in the care, custody, and control of their
    children protected by the due process clause of article 1,
    section 5 of the Hawai#i Constitution. . . ." In re Doe, 99
    Hawai#i 522, 533, 
    57 P.3d 447
    , 458 (2002).
    DJ v. CJ, 147 Hawai#i 2, 17, 
    464 P.3d 790
    , 805 (2020) (quoting AC
    v. AC, 134 Hawai#i 221, 233, 
    339 P.3d 719
    , 731 (2014)); see AA v.
    BB, 139 Hawai#i 102, 109, 
    384 P.3d 878
    , 885 (2016).
    In Troxel, the United States Supreme Court affirmed the
    Washington Supreme Court's judgment that a Washington visitation
    statute violated the United States Constitution. The plurality
    opinion found that the Washington statute was "breathtakingly
    broad" because its language effectively permitted "any third
    party seeking visitation to subject any decision by a parent
    concerning visitation of the parent's children to state-court
    review." 
    530 U.S. at 67
    . The plurality also emphasized the
    importance of the presumption "that fit parents act in the best
    interest of their children[,]" and reasoned that the trial
    court's visitation order contravened that presumption in part
    13
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    because it accorded no "special weight" to the parent's
    determination of her children's best interests. 
    Id. at 68-69
    .
    The plurality further observed that the trial court's findings
    demonstrated "nothing more that a simple disagreement between
    [the trial court] and [the parent] concerning her children's best
    interests." 
    Id. at 72
    . However, neither the plurality opinion
    nor the other five opinions in Troxel defined the scope of the
    parental right with respect to visitation decisions. See AA, 139
    Hawai#i at 109, 384 P.3d at 885 (construing Troxel).
    In Doe, the Hawai#i Supreme Court considered the
    constitutionality of HRS § 571-46.3,5/ which allowed for a
    grandparent to petition for reasonable visitation of their
    grandchild, and allowed the court to grant the petition so long
    as Hawai#i was the child's home state and reasonable visitation
    was in the child's best interests. 116 Hawai#i at 325, 
    172 P.3d at 1069
    . Applying strict scrutiny, the supreme court concluded
    that "proper recognition of parental autonomy in child-rearing
    decisions requires that the party petitioning for visitation
    demonstrate that the child will suffer significant harm in the
    absence of visitation before the family court may consider what
    degree of visitation is in the child's best interests." 
    Id.
     at
    335–36, 
    172 P.3d at
    1079–80. The court held that HRS § 571-46.3
    5/
    HRS § 571-46.3 (2018) states:
    Grandparents' visitation rights; petition; notice;
    order. A grandparent or the grandparents of a minor child
    may file a petition with the court for an order of
    reasonable visitation rights. The court may award
    reasonable visitation rights provided that the following
    criteria are met:
    (1)   This State is the home state of the child at the
    time of the commencement of the proceeding; and
    (2)   Reasonable visitation rights are in the best
    interests of the child.
    No hearing for an order of reasonable visitation rights
    under this section shall be had unless each of the living
    parents and the child's custodians shall have had due
    notice, actual or constructive, of the allegations of the
    petition and of the time and place of the hearing thereof.
    An order made pursuant to this section shall be
    enforceable by the court, and the court may issue other
    orders to carry out these enforcement powers if in the best
    interests of the child.
    14
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    was facially unconstitutional because it did not include the
    "harm to the child" standard required by the right to privacy
    under article I, section 6 of the Hawai#i Constitution. Id. at
    336, 
    172 P.3d at 1080
    . "Thus, a parent's fundamental right to
    direct the upbringing of his or her child was implicated 'where a
    nonparent third party petitione[d] for visitation,' and the State
    could not interfere with the parent's decision absent a finding
    that the parent's decision to deny access to the child would
    result in harm to the child." AA, 139 Hawai#i at 111, 384 P.3d
    at 887 (construing Doe).
    We hold that Doe's harm-to-the-child standard applies
    in these circumstances, where Father, as a custodial parent whose
    fitness has not been challenged, seeks to modify a visitation
    order entered in favor of non-parent third parties, i.e.,
    Maternal Grandparents. We further hold that Maternal
    Grandparents have satisfied the harm-to-the-child standard in the
    unique circumstances of this case, where the Family Court
    entered extensive findings of fact that the Children would suffer
    significant harm if the 10/3/18 Visitation Order were modified as
    requested. The Family Court also concluded, in compliance with
    the Troxel plurality, that the weight of the evidence on Maternal
    Grandparents' side was sufficient to overcome the rebuttable
    presumption in favor of Father's request to modify visitation.
    The relevant FOFs include the following, none of which Father
    challenges on appeal:
    129. Maternal Grandparents and Mother's family are
    the only ties and connection the children have to their
    Mother, now deceased, who was also once their primary
    caretaker.
    130. Maternal Grandparents had substantial and
    emotional ties to the children throughout their life with
    Mother until Father assumed custody after Mother passed away
    three (3) years ago.
    131. Maternal Grandparents' relationship with the
    children goes beyond having a mere positive influence on
    them.
    132. The children will suffer significant harm in the
    absence of visitation with Maternal Grandparents in
    Colorado.
    133. Colorado was the children's home where they
    lived with Mother and were raised for most of their life
    before they moved to Hawaii a few years ago.
    15
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    134. Most of the children's extended family on
    Mother's side, including one (1) of their half-siblings
    reside in Colorado.
    . . . .
    138. Serious harm would result to the children given
    Father's motivation to limit and restrict Maternal
    Grandparents' visits with the children to Hawaii only.
    (Emphasis added.)
    These FOFs are binding on this court and support the
    Family Court's mixed conclusions of fact and law in FOFs 139 and
    150 that, respectively: (1) "[t]he level of harm is of the
    magnitude that justifies overruling Father's proposed request to
    modify the valid and enforceable 10/3/18 Visitation Order
    restricting the location of the visits to Hawaii"; and (2) "the
    overall weight of the evidence on Maternal Grandparents' side is
    sufficient to overcome any rebuttable presumption in favor of
    Father's request to modify visitation." Cf. Troxel, 
    530 U.S. at 72
     (observing that the trial court's "slender findings"
    demonstrated "nothing more than a simple disagreement between
    [the trial court] and [the parent] concerning her children's best
    interests").
    After determining that the Children would suffer
    significant harm if the 10/3/18 Visitation Order were modified as
    requested, the Family Court then considered and applied the
    factors enumerated in HRS § 571-46(b)6/ for determining the best
    6/
    HRS § 571-46(b) (2018) states:
    (b) In determining what constitutes the best interest
    of the child under this section, the court shall consider,
    but not be limited to, the following:
    (1)   Any history of sexual or physical abuse of a
    child by a parent;
    (2)   Any history of neglect or emotional abuse of a
    child by a parent;
    (3)   The overall quality of the parent-child
    relationship;
    (4)   The history of caregiving or parenting by each
    parent prior and subsequent to a marital or
    other type of separation;
    (5)   Each parent's cooperation in developing and
    implementing a plan to meet the child's ongoing
    needs, interests, and schedule; provided that
    (continued...)
    16
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    interest of the child. See Doe, 116 Hawai#i at 335–36, 
    172 P.3d at
    1079–80. Father does not dispute any of the Family Court's
    extensive findings on this subject, which support the court's
    conclusions in FOFs 153 and 156 that, respectively, "[i]t is in
    6/
    (...continued)
    this factor shall not be considered in any case
    where the court has determined that family
    violence has been committed by a parent;
    (6)    The physical health needs of the child;
    (7)    The emotional needs of the child;
    (8)    The safety needs of the child;
    (9)    The educational needs of the child;
    (10)   The child's need for relationships with
    siblings;
    (11)   Each parent's actions demonstrating that they
    allow the child to maintain family connections
    through family events and activities; provided
    that this factor shall not be considered in any
    case where the court has determined that family
    violence has been committed by a parent;
    (12)   Each parent's actions demonstrating that they
    separate the child's needs from the parent's
    needs;
    (13)   Any evidence of past or current drug or alcohol
    abuse by a parent;
    (14)   The mental health of each parent;
    (15)   The areas and levels of conflict present within
    the family; and
    (16)   A parent's prior willful misuse of the
    protection from abuse process under chapter 586
    to gain a tactical advantage in any proceeding
    involving the custody determination of a minor.
    Such willful misuse may be considered only if it
    is established by clear and convincing evidence,
    and if it is further found by clear and
    convincing evidence that in the particular
    family circumstance the willful misuse tends to
    show that, in the future, the parent who engaged
    in the willful misuse will not be able to
    cooperate successfully with the other parent in
    their shared responsibilities for the child.
    The court shall articulate findings of fact
    whenever relying upon this factor as part of its
    determination of the best interests of the
    child. For the purposes of this section, when
    taken alone, the voluntary dismissal of a
    petition for protection from abuse shall not be
    treated as prima facie evidence that a willful
    misuse of the protection from abuse process has
    occurred.
    17
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    the best interests of the children to enforce the provisions of
    the valid and enforceable 10/3/18 Visitation Order[,]" and "[t]he
    best interests of the children do not justify modification." The
    Family Court also made clear in COLs 6 and 7 that it relied on
    HRS § 571-46(a)(6) and (7)7/ and HRS § 571-46(b) in making its
    visitation decision.8/ See Waldecker v. O'Scanlon, 137 Hawai#i
    460, 
    375 P.3d 239
     (2016) (cited by the Family Court in COL 11).
    Accordingly, Father's argument that his parental rights
    were violated is without merit.
    B.   Grandparent Visitation Statute
    Father contends that the Family Court erred "by failing
    to uphold the special weight standard specified in Paragraph 2 of
    [HRS §] 571-46.3."
    As discussed above, HRS § 571-46.3, the grandparent
    visitation statute, was declared facially unconstitutional in
    Doe. See 116 Hawai#i at 336, 
    172 P.3d at 1080
    . Even if HRS
    § 571-46.3 had not been held unconstitutional, the statute would
    not have applied to Father's Motion for Post-Decree Relief, which
    sought modification of the Colorado Court's 10/3/18 Visitation
    7/
    HRS § 571-46(a)(6) and (7) (2018) states, in relevant part:
    (a) In actions . . . where there is at issue a
    dispute as to the custody of a minor child, the court,
    during the pendency of the action, . . . or any time during
    the minority of the child, may make an order for the custody
    of the minor child as may seem necessary or proper. In
    awarding the custody, the court shall be guided by the
    following standards, considerations, and procedures:
    . . . .
    (6)   Any custody award shall be subject to
    modification or change whenever the best
    interests of the child require or justify the
    modification or change and, wherever
    practicable, the same person who made the
    original order shall hear the motion or petition
    for modification of the prior award;
    (7)   Reasonable visitation rights shall be awarded to
    parents, grandparents, siblings, and any person
    interested in the welfare of the child in the
    discretion of the court, unless it is shown that
    rights of visitation are detrimental to the best
    interests of the child[.]
    8/
    Father does not challenge the validity of these provisions.
    18
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Order, entered pursuant to Colorado law. The Family Court did
    not err in not applying HRS § 571-46.3 to the Motion for Post-
    Decree Relief. Moreover, we ruled in Section A, supra, that the
    Family Court correctly concluded that the weight of the evidence
    on Maternal Grandparents' side was sufficient to overcome the
    rebuttable presumption in favor of Father's request to modify
    visitation.
    Father also argues that FOFs 135, 140 through 142, and
    149 (see supra) are "outside the scope of evidence." FOF 135
    states in part that one of the Children's half-siblings lives in
    Texas. Maternal Grandmother testified that one of the Children's
    half-siblings lives with Grandparents in Colorado and the other
    half-sibling lives with his father in Colorado.9/ The record
    lacks substantial evidence to support the finding that one of
    Children's half-siblings lives in Texas, and that finding is thus
    clearly erroneous. However, this minor error was harmless in
    these circumstances and does not warrant relief. See, e.g.,
    Dupree v. Hiraga, 121 Hawai#i 297, 320 n. 28, 
    219 P.3d 1084
    , 1107
    n.28 (2009) (ruling that a clearly erroneous finding of fact was
    harmless); DL v. CL, No. CAAP-XX-XXXXXXX, 
    2019 WL 968052
     at *6
    (Haw. App. Feb. 28, 2019) (SDO) (holding in a custody proceeding
    that "[m]inor errors in a court's findings that are harmless do
    not warrant relief").
    FOFs 140 through 142 and 149 reflect the Family Court's
    findings regarding Father and Adoptive Wife's motivations in
    seeking to modify the 10/3/18 Visitation Order. These FOFs
    appear to be based on numerous other unchallenged findings, e.g.,
    FOFs 49-75 and 116-24, which describe instances of conflict
    between Father and Adoptive Wife on one side, and Maternal
    Grandparents and Mother's family on the other. See In re Doe,
    107 Hawai#i 12, 19, 
    108 P.3d 966
    , 973 (2005) (explaining that
    appellate courts give due deference to the right of the trier of
    fact to draw reasonable inferences from the evidence adduced).
    9/
    In the same testimony, Maternal Grandmother stated that two weeks
    earlier, the "El Paso County Courts" had awarded Grandparents additional
    visitation with the latter child. In context, it appears that Maternal
    Grandmother was referring to El Paso County, Colorado rather than El Paso
    County, Texas.
    19
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    The Family Court also "did not find Father and [Adoptive
    Mother's] testimony credible," a determination that we will not
    disturb on appeal. See Fisher, 111 Hawai#i at 46, 
    137 P.3d at 360
    . Based on our review of the record, we conclude there was
    credible evidence of sufficient quality and probative value to
    enable a person of reasonable caution to support FOFs 140 through
    142 and 149, and we are not left with a definite and firm
    conviction that a mistake has been made.
    C.   Effect of Adoption
    Father argues that as a result of the adoption of the
    Children by Adoptive Mother, under HRS § 578-16,10/ Maternal
    10/
    HRS § 578-16 (2018) provides in part:
    Effect of adoption. (a) A legally adopted individual
    shall be considered to be a natural child of the whole blood
    of the adopting parent or parents as provided in the Uniform
    Probate Code, relating to the descent of property.
    (b) The former legal parent or parents of an adopted
    individual and any other former legal kindred shall not be
    considered to be related to the individual as provided in
    the Uniform Probate Code except as provided in this section.
    (c) An adopted individual and the individual's
    adopting parent or parents shall sustain towards each other
    the legal relationship of parents and child and shall have
    all the rights and be subject to all the duties of that
    relationship . . . .
    (d) Except as provided in subsection (e), all legal
    duties and rights between the individual and the
    individual's former legal parent or parents shall cease from
    the time of the adoption; provided that if the individual is
    adopted by a person married to a legal parent of the
    individual, the full reciprocal rights and duties which
    theretofore existed between the legal parent and the
    individual, and the rights of inheritance as between the
    individual and the legal parent and the legal relatives of
    the parent, as provided in chapter 560, shall continue,
    notwithstanding the adoption, subject only to the rights
    acquired by and the duties imposed upon the adoptive parents
    by reason of the adoption.
    (e) Notwithstanding subsections (b) and (d), if an
    individual is adopted before that individual attains the age
    of majority and:
    (1)   The individual is adopted by a spouse of a
    natural parent of the individual; or
    (2)   The individual is adopted by a natural
    grandparent, aunt, uncle, or sibling of the
    (continued...)
    20
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Grandparents "no longer have any legal rights and duties" as to
    the Children.
    Father did not raise this argument in the Family Court.
    "As a general rule, if a party does not raise an argument at
    trial, that argument will be deemed to have been waived on
    appeal; this rule applies in both criminal and civil cases."
    County of Hawaii v. C & J Coupe Family Ltd., 119 Hawai#i 352,
    373, 
    198 P.3d 615
    , 636 (2008) (quoting State v. Moses, 102
    Hawai#i 449, 456, 
    77 P.3d 940
    , 947 (2003)); see Hawai#i Rules of
    Appellate Procedure Rule 28(b)(4)(iii). Accordingly, Father's
    argument is deemed waived.
    III.    Conclusion
    For the reasons discussed above, we affirm the "Order
    Re: [Father's] Motion and Declaration for Post-Decree Relief
    Filed 2/25/20," entered on September 18, 2020, in the Family
    Court of the First Circuit.
    On the briefs:                                /s/ Lisa M. Ginoza
    Chief Judge
    JC,
    Self-represented
    Respondent-Appellant                          /s/ Clyde J. Wadsworth
    Associate Judge
    TG and AG,
    Self-represented                              /s/ Sonja M.P. McCullen
    Intervenors-Appellees                         Associate Judge
    10/
    (...continued)
    individual or the spouse of a natural
    grandparent, aunt, uncle, or sibling;
    then for the purposes of interpretation or construction of a
    disposition in any will, trust, or other lifetime
    instrument, whether executed before or after the order of
    adoption, and for purposes of determining heirs at law, the
    rights of the adopted individual and the individual's
    descendants with respect to the individual's natural family
    shall not be affected by the adoption, and they shall be
    included in any determination of heirs or members of any
    class, unless specifically excluded by name or class.
    . . . .
    21