In re: AA. ( 2021 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-DEC-2021
08:58 AM
Dkt. 58 OP
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
IN THE INTEREST OF AA
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-S NO. 16-00249)
DECEMBER 15, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
This case arises from a proceeding in the Family Court
of the First Circuit (family court) under the Hawaiʻi Child
Protective Act, Hawaiʻi Revised Statutes (HRS) Chapter 587A (CPA
proceeding). Petitioner-Appellant Father appeals from the
Intermediate Court of Appeals’ (ICA) judgment affirming the
family court’s determination that (1) Father was properly served
with summons to appear in the CPA proceeding by publication;
(2) Father’s Motion to Set Aside Default should have been denied
pursuant to Hawaiʻi Family Court Rules (HFCR) Rules 55(c) and
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60(b); and (3) Father was required to set aside both his default
for failure to appear in the CPA proceeding after proper service
by publication (default) and the termination of his parental
rights, which was entered while he was defaulted (default
judgment), before he could move to intervene. Both Father’s
default and default judgment were entered while the identity of
Child’s natural father was unknown. On certiorari, Father and
Respondent-Appellee Department of Human Services (DHS) argue
that Father was not required to set aside the default and
default judgment before proceeding with his Motion to Intervene
pursuant to HFCR Rules 24(a)(2) and (b)(1).
Based on the plain and unambiguous language of HFCR
Rule 24, we agree that Father was not required to set aside the
default and default judgment before proceeding with his Motion
to Intervene. However, Father’s remaining arguments lack merit.
I. BACKGROUND
A. Factual Background
On November 30, 2016, Mother gave birth to Child in a
Honolulu hospital. Before Mother was discharged from the
hospital, “DHS received a report of Physical Neglect, Threat of
Abuse and Threat of Neglect of [Child.]” On December 2, 2016, a
social worker from the Crisis Response Team interviewed Mother
at the hospital. Then, on December 7, 2016, DHS issued an
initial Safe Family Home Report.
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In the Safe Family Home Report, DHS noted that Mother
told hospital staff that she did not feel safe going home due to
domestic violence by “John,” her live-in boyfriend. However,
DHS reported that Mother stated “John” was not Child’s father
and did not know Mother was pregnant. With respect to Child’s
unknown natural father,1 DHS reported that, according to Mother,
he lived in Chuuk, Micronesia and, like Mother, wanted Child to
be placed into foster care. Child was taken into police
protective custody on December 2, 2016, and was placed with
Respondents-Appellees-Resource Caregivers/Intervenors Craig and
Jodilynn Cammack (collectively, “the Cammacks”).2
B. Family Court Proceedings3
1. The CPA Proceeding
On December 7, 2016, DHS filed a Petition for
Temporary Foster Custody of Child pursuant to HRS §§ 571-11(9)
1 DHS reported Child’s father as “unknown” because Mother initially
stated Child’s father was in Chuuk and did not provide further information
about Child’s father. Mother’s counsel later stated on the record that
Mother did not know the identity of child’s father. In addition, Mother
testified she did not tell Father about Child when Child was born because,
initially, Mother did not know if Father was Child’s natural father. Thus,
it appears that the identity of Child’s natural father was initially unknown
to DHS, and Father claimed he was initially unaware he could be Child’s
natural father.
2 Although the Cammacks initially did not plan to be Child’s permanent
placement, they subsequently indicated their desire to adopt Child.
3 The Honorable Bode A. Uale (Judge Uale) presided over most of the
family court proceedings. The Honorable Peter C. K. Fong presided over a
December 9, 2016 temporary foster custody hearing. The Honorable Andrew T.
Park (Judge Park) presided over a pretrial conference on April 22, 2019.
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and 587A-5, initiating the CPA proceeding. The Petition for
Temporary Foster Custody named Mother, but listed Child’s father
as “unknown” with an unknown address in Chuuk. Based on the
Safe Family Home Report, DHS requested that “Temporary Foster
Custody of [Child] be ordered, matters concerning [Child] and
other family members be adjudicated, and such other orders as
the [family court] deems appropriate be entered.”
That same day, DHS also provided a Family Service Plan
between Mother and DHS, which was “designed to help the family
address and resolve the safety issues as identified by DHS.” To
address the identified safety issues, the Family Service Plan
provided tasks for Mother such as parenting education,
psychological evaluation, and domestic violence services. With
respect to the unknown natural father, the Family Service Plan
provided that “[w]hen identified and located, [the unknown
natural father] will be assessed and recommended to services.”
The final goal of the Family Service Plan was to “[m]aintain a
safe family home [for Child] without DHS intervention.”
On December 9, 2016, after a Temporary Foster Custody
Hearing, the family court entered Orders Concerning the Child
Protective Act. The family court found that continued placement
in emergency foster care was necessary to protect Child from
imminent harm. The family court also determined that Mother
knowingly and voluntarily stipulated to adjudication of the
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Petition for Temporary Foster Custody and the Family Service
Plan from December 7, 2016. The family court awarded DHS foster
custody over Child. The identity of child’s father was not
known at the time of this hearing. All parties were ordered to
appear at a periodic review hearing on March 2, 2017.
On March 2, 2017, Mother failed to appear at the
scheduled periodic review hearing in the family court. Citing a
February 16, 2017 report provided to the family court,4 DHS
explained that it was unable to contact Mother and that she
missed her scheduled visits with DHS. DHS made an oral motion
to serve the unknown natural father by publication to provide
notice of the CPA proceeding, which the family court granted.
The family court determined that Child should remain in foster
custody and scheduled an additional periodic review hearing.
Before the next scheduled periodic review hearing, DHS
served the unknown natural father by publication in the Honolulu
Star-Advertiser on April 10, 17, and 24, and May 1, 2017. Then,
on June 21, 2017, the family court entered default against the
4 The February 16, 2017 report stated that (1) as of December 9, 2016,
Mother was living in a car parked in a park with her sister and sister’s
children; (2) Mother “no-showed” the visits scheduled on December 15, 2016
and December 22, 2016 and had not contacted DHS; (3) Mother’s telephone was
disconnected; (4) DHS mailed a letter to Mother at the home of her maternal
aunt asking Mother to contact DHS, but received no response; and (5) on
February 8, 2017, Mother’s maternal aunt reported to DHS that Mother was back
with her boyfriend and had no working phone number.
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unknown natural father for his failure to appear in the CPA
proceeding following proper service by publication.
After additional periodic review hearings with no
resolution as to permanent custody of Child, DHS filed a Motion
to Terminate Parental Rights of Mother and the unknown natural
father on February 21, 2018. The family court heard the motion
on February 27, 2018, and Mother did not appear at the hearing.
The family court defaulted Mother and the unknown natural father
for nonappearance and granted DHS’s motion to terminate the
parental rights of Mother and the unknown natural father,
thereby entering default judgment as to the unknown natural
father. In addition, the family court revoked foster custody
and awarded permanent custody of child to DHS. The family court
also ordered a permanent plan for Child, which included the goal
of placing Child for adoption by August 2018, and scheduled a
permanency hearing for August 14, 2018.
On August 14, 2018, the family court conducted the
permanency hearing and approved adoption as the proper
permanency plan for Child. In addition, the family court
scheduled another permanency hearing for January 29, 2019.
On October 9, 2018, Father informed DHS via email of
his possible paternity and that he recently learned Child was in
foster care. In the email, Father “inquired about how he could
begin the process of legally bringing [Child] home.” After
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Father contacted DHS, DHS filed a motion for immediate review of
Child’s case and a hearing was set for December 6, 2018.
2. Father’s Paternity Action and Motion to Intervene
On November 5, 2018, Father filed a Petition for
Paternity for Child.5 On January 28, 2019, Father filed a Motion
to Intervene in the CPA proceeding under HFCR Rule 24. The
family court took Father’s Motion to Intervene under advisement
and continued the hearing to March 25, 2019.6 On February 22,
2019, Father was adjudicated to be the natural father of Child.
The family court heard Father’s Motion to Intervene at
the permanency hearing on March 25, 2019. At the hearing, DHS
reported that Child had been living with the Cammacks for over
two years and was doing well there. Next, the family court
addressed Father’s Motion to Intervene. The family court
explained to Father’s counsel that:
this is . . . going to be a difficult case for your client
because of the fact of the passage of time and where the
child has been placed almost three years and then your
client appears. So it’s not only about your client. It’s
also about the safety, welfare, and well-being of the
child. So I cannot give you an automatic intervention in
this case, but I am going to set it for trial.
(Emphasis added.) Father’s counsel asked for clarification
about the status of Father’s Motion to Intervene:
5 Father’s Petition for Paternity for Child was a separate action from
the CPA proceeding.
6 On February 11, 2019, Father filed a second Motion to Intervene, which
was also scheduled to be heard on March 25, 2019.
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[FATHER’S COUNSEL]: Just for the -- so I’m clear, on
the trial, is the court granting our motion to intervene
so[.]
THE COURT: No.
[FATHER’S COUNSEL]: -- we’re having a trial on -- on
the --
THE COURT: The trial is on whether I’m going to allow
[Father] to intervene in this case.
[FATHER’S COUNSEL]: All right.
THE COURT: So your motion to intervene is the subject
of the trial.
[FATHER’S COUNSEL]: And I take it the issues are
going to be the -- the objections raised in the short
report from the [Court Appointed Special Advocates Program]
and whatever that’s in the permanency plan?
THE COURT: Well, the standard is always best interest
of the child so --
[FATHER’S COUNSEL]: Yes.
THE COURT: -- you might want to go on that. Based on
all of the things that have happened, it’s almost three
years this child has been in -- in care. As far as why
your client took so long, bring it up at trial. I’m not
going to hear anything today.
The family court entered a written order setting Father’s Motion
to Intervene for trial on May 7, 2019, with a pretrial
conference set for April 22, 2019.
On April 22, 2019, Judge Park presided over the
pretrial conference. At the pretrial conference, both DHS and
Respondent-Appellee Court Appointed Special Advocates (the CASA)
stated that it did not object to Father’s Motion to Intervene
and that a stipulation had been submitted to the family court on
or around April 12, 2019. DHS advised Judge Park that it was
notified on April 15, 2019, that “the court didn’t want to sign
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[the stipulation]” because the court “had reservations about
signing it[.]” Notwithstanding Judge Uale’s reluctance to sign
the stipulation allowing Father to intervene, Judge Park stated:
Well, here’s the thing, right. The May 7th date, if
no one’s going to put up a fight, then I don’t see the need
to keep a contested hearing on the calendar when it’s going
to just eat up a court slot. So I guess if everyone’s in
agreement, [Father] got his own counsel privately, then by
stipulation, with no objection of the parties, [Father’s]
motion . . . to intervene in the proceedings will be
granted. He’ll be made a party to the case. He shall be
noticed through counsel on all matters and papers regarding
this case.
And vacate the May 7th hearing date[.]
When the CASA asked for clarification as to when Father would be
considered a party to the case, Judge Park stated that Father’s
Motion to Intervene is granted and that Father is “a party to
the case prospectively” and would be noticed on all matters
going forward. That same day, Judge Park entered an order
granting Father’s Motion to Intervene.
On May 14, 2019, the Cammacks filed a Motion to
Intervene in the CPA proceeding, which Father opposed. On
May 22, 2019, Judge Uale heard the Cammacks’ Motion to
Intervene. Judge Uale informed the parties:
THE COURT: Okay, and I guess [Father] has been made a
party by stipulation. So I’m going to make you a party
because I don’t believe that stipulation was appropriate
because I -- you folks sent the stipulation to me, and I
returned it because I told you folks I wouldn’t sign it,
and then when I was gone, I understand the per diem judge
that was sitting signed off on the stipulation. The
problem is you have -- you have a termination of parental
rights so you have to set that aside first in order for
your client to intervene. So as far as I’m concerned, that
stipulation is void, because in order for you to come into
the case, since you're saying that your client is the
biological father, I think legally you have to set aside
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the prior court order of termination of parental rights.
So I don’t know how you want to deal with this. I’m
certainly happy to give you a trial. But I don’t think
that stipulation was appropriate just . . . legally.
. . . .
So I’m ready to tell you first I’m setting aside the
stipulation to allow [Father] to intervene because I don’t
think that was appropriate. It’s not the per diem judge’s
fault. I wasn’t here. I was on some kind of leave. And I
do think that you have a right, but I think you need to
file an appropriate motion to set aside default citing the
appropriate law in order to have that. So I’m going to
allow you to do that, but I’m also going to give you a
pretrial and a trial date in order to have that come
across.
(Emphasis added.) Judge Uale then instructed Father’s counsel
to file a written motion to set aside default so that the family
court could set pretrial and trial dates to hear the motion. On
May 29, 2019, Judge Uale entered a written order (1) granting
the Cammacks’ Motion to Intervene; (2) setting aside the order
granting Father’s intervention entered on April 22, 2019;
(3) ordering Father to file a written motion to set aside
default; and (4) scheduling trial on Father’s motion to set
aside default. According to the family court, if Father set
aside his default, the termination of his parental rights would
be reversed by operation of law.
3. Father’s Motion to Set Aside Default
Father filed a written Motion to Set Aside Default on
June 5, 2019, which the Cammacks opposed. In his Motion to Set
Aside Default, Father pointed out that “[i]t is well settled
that ‘defaults and default judgments are not favored
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and . . . any doubt should be resolved in favor of the party
seeking relief, so that, in the interests of justice, there can
be a full trial on the merits.’” Father contended that he
satisfied the following three requirements to set aside a
default and default judgment: “(1) that the nondefaulting party
will not be prejudiced by the reopening, (2) that the defaulting
party has a meritorious defense, and (3) that the default was
not the result of inexcusable neglect or a willful act.”
First, Father contended that no nondefaulting party
would be prejudiced. Father argued that “the only nondefaulting
parties would be the State and Mother[]” because “[the Cammacks]
were not parties at the time default was entered against
Father[.]” In addition, Father pointed out that “DHS and [the]
CASA both previously stipulated to Father’s [intervention,]” and
that Mother did not have rights that could be prejudiced.
According to Father, even if prejudice to the Cammacks was
considered, “any delay caused by further proceedings can only
work to their advantage[]” because Child will have more time to
bond with the Cammacks. Father added that “the best interests
of [Child] will be served if Father is allowed to make the case
that [Child’s] best chance for a safe and happy home is with his
natural Father, his siblings, and his extended family[.]”
Second, Father claimed he had a meritorious defense.
Father pointed out that termination of parental rights “can only
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be ordered upon a showing, by clear and convincing evidence,
that the parent cannot presently nor is it foreseeable, that a
parent could provide a safe home for the child, even with the
assistance of a service plan within a reasonable time.” Father
contended that he could demonstrate that he successfully raised
three other children with Mother and could provide a safe home
for Child. In addition, Father argued that Mother’s domestic
violence allegations were false, and that Father had no history
of domestic violence. Thus, according to Father, his parental
rights would be protected from termination by HRS § 587A-33(a).7
7 HRS § 587A-33(a) (Supp. 2017) provides in relevant part:
(a) At a termination of parental rights hearing, the court
shall determine whether there exists clear and convincing
evidence that:
(1) A child’s parent whose rights are subject to
termination is not presently willing and able to
provide the parent’s child with a safe family home,
even with the assistance of a service plan;
(2) It is not reasonably foreseeable that the child’s
parent whose rights are subject to termination will
become willing and able to provide the child with a
safe family home, even with the assistance of a
service plan, within a reasonable period of time,
which shall not exceed two years from the child’s
date of entry into foster care;
(3) The proposed permanent plan is in the best
interests of the child. In reaching this
determination, the court shall:
(A) Presume that it is in the best interests of
the child to be promptly and permanently placed
with responsible and competent substitute
parents and family in a safe and secure home;
and
(B) Give greater weight to the presumption that
the permanent plan is in the child’s best
interest, the younger the child is upon the
child’s date of entry into foster care . . . .
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Third, Father argued that his default was not willful
or the result of inexcusable negligence. Father contended that
“no effort was made to provide Father with notice of the first
hearing in [the CPA proceeding]” because Mother initially
thought Father was not Child’s natural father. Father claimed
that even after he learned of Child two weeks after Child’s
birth, Father believed Mother when she told him that Father was
not Child’s natural father, and Father reasonably assumed that
Child had been adopted. Furthermore, Father claimed that the
service by publication in the Honolulu Star-Advertiser was not
proper because he did not, and had no reason to, read that
newspaper and the legal notices section. In addition, Father
argued that no effort was made to reach Child’s alleged father
who resided in Chuuk, even though Mother stated she knew who and
where Child’s father was.
The family court heard Father’s Motion to Set Aside
Default over a two-day period and received testimony from
Father, Mother, and DHS social worker Lena Kakehi (Ms. Kakehi).
Ms. Kakehi testified that she had difficulty locating
and meeting with Mother, who was living with unidentified
relatives on the beach. Mother told Ms. Kakehi that she was
afraid to return home to live with “John” because of domestic
abuse, but refused to provide a last name for “John.” Mother
claimed that she did not know the identity of Child’s father.
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However, Mother also claimed that Child’s father was living in
Chuuk but Mother did not provide Ms. Kakehi with any contact
information for Child’s father. Ms. Kakehi also testified that
Mother was not interested in receiving any services from DHS,
which presented a safety concern. In Ms. Kakehi’s opinion,
Mother and Father would not provide a safe home for Child, given
that Mother would be the primary caretaker for Child if Father’s
default were set aside.
Mother testified both in Chuukese with the assistance
of an interpreter and in English. Mother testified that while
visiting Chuuk on March 25, 2016, she met a man named “John” and
had sexual relations with him. Mother testified that she
thought “John” was the only possible natural father of Child,
but at other times Mother testified that she was not sure if
Child’s natural father was “John” or Father. Initially, Mother
testified that she did not tell anyone that she had been a
victim of domestic violence and said that she gave up Child
because she was fearful that Father would be upset about Child.
However, Mother then admitted to telling DHS that she was a
victim of domestic violence, claiming that she said that because
Child needed a place to stay. After giving birth to Child,
Mother was transferred to a psychiatric ward at another hospital
and spent four days there. After her discharge from the
psychiatric ward, Mother lived in her car before returning to
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live with Father. Upon her return to live with Father in
December 2016,8 Father found Mother’s medical discharge paperwork
following Child’s birth and learned that Mother had given birth.
Mother testified that she attended two hearings in the CPA
proceeding but did not inform Father about the case.
Father testified that he had been in a relationship
with Mother for eight years and that they had three children
together before Child was born. Father and Mother’s first three
children lived in Chuuk with their maternal grandmother and
Mother lived in Chuuk with them approximately half of each year.
According to Father, Mother went to Chuuk shortly after Child
was conceived and returned home one month prior to Child’s
birth. Father stated that Mother’s pregnancy was not visible
during the month prior to Child’s birth and that he did not see
Mother unclothed. Father also claimed that Mother did not tell
him about any court proceedings, that he did not know anything
about adoption proceedings, and that he thought Child had been
adopted by the time Father realized he might be Child’s natural
father.9
8 At the contested hearing, Mother testified that she was living with
Father, and only lived out of a car for one week after giving birth to Child.
9 Although Father claimed that he thought Child had been adopted, Child’s
adoption was never completed and remains pending.
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Father admitted that he learned that Mother gave birth
to Child in December 2016, but stated that he did not perform
any calculations to determine if he was Child’s natural father
until April 2018, when Mother told Father that she noticed
Child’s resemblance to Father and provided Father with a picture
of Child. Father testified that he immediately started to try
and figure out how he could stop Child’s adoption process, and
claimed that he and Mother went to the DHS office where Ms.
Kakehi worked every three weeks from May 2018 to October 2018
without ever making contact with Ms. Kakehi. Father began
visiting Child starting on June 23, 2018, while Child was
visiting with a maternal aunt, and Father began paying child
support for Child in March 2019. Father was able to meet with
Ms. Kakehi on October 16, 2018, and was told to hire an
attorney. Father hired an attorney the following day.
On September 20, 2019, the family court entered a
decision and order denying Father’s Motion to Set Aside Default
and Motion to Intervene. The family court found “[M]other’s
testimony not credible and that her reasons for not telling
[F]ather of her pregnancy and her subsequent hiding of her
pregnancy and giving birth was very convoluted and not
believable.” The family court further found that “Father’s
testimony was also not credible, in that he asserted that he did
not know of [M]other’s pregnancy and subsequent child birth when
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in fact according to [M]other’s testimony she returned to Hawaii
and lived with him for a time before she gave birth.” The
family court determined that “Father knew or should have known
that [Child] was his child yet through his own inaction did not
file his motion to set aside default until June 5, 2019[,]” and
that “Father has not satisfied the requirements of HFCR 55 or
HFCR 60(b) in that his failure to file a motion to set aside his
default was inexcusable.” The family court also observed that
Child was placed with the Cammacks almost three years earlier
and deserved permanency. Furthermore, the family court found
that “[e]ven if [F]ather and [M]other were given an opportunity
to raise [Child], [Ms. Kakehi] testified that the home is not
safe and it is unknown how long or if the parents would in the
reasonably near future would [sic] be able to provide a safe
home for [Child].” Thus, the family court concluded that it was
not in “[Child’s] best interests that permanency be delayed any
longer[,]” and denied Father’s Motion to Set Aside Default.
The family court issued its corresponding Findings of
Fact and Conclusions of Law on November 19, 2019. The family
court found that “Mother informed DHS that [Child]’s father was
in Chuuk but did not provide the name of the biological father
to DHS or any contact information for the biological father[,]”
and “Mother did not maintain contact with the DHS[]” during the
CPA proceeding before termination of her parental rights. The
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family court determined that DHS was unaware of additional
information regarding Child’s father in April and May of 2017
when DHS published notice to the unknown natural father, and on
June 21, 2017, when the unknown natural father was defaulted for
failure to appear in the CPA proceeding. The family court also
found that Father knew or should have known of the ongoing CPA
proceeding between November 2016 and April 2018. Thus, the
family court concluded that Father was properly noticed and
served by publication in the Honolulu Star-Advertiser, “and the
entry of default and subsequent termination of his parental
rights upon his failure to appear based upon [that] notice was
appropriate.”
Then, the family court analyzed Father’s Motion to Set
Aside Default under HFCR Rules 55(c) and 60(b). With respect to
HFCR Rule 60(b),10 the family court determined that it lacked
10 HFCR Rule 60(b) (Supp. 2016) provides in relevant part:
Rule 60. Relief from judgment or order.
. . . .
(b) Mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud. On motion and upon such terms
as are just, the court may relieve a party or a party’s
legal representative from any or all of the provisions of a
final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new
(. . . continued)
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jurisdiction to entertain Father’s Motion to Set Aside Default
under HFCR Rules 60(b)(1), (2), or (3) because Father’s Motion
to Set Aside Default was filed more than one year after the
default and default judgment were entered against Father. The
family court also found that HFCR Rules 60(b)(4) and (5) were
not applicable to the facts of this CPA proceeding. In
addition, the family court determined that Father lacked a
meaningful or substantial relationship with Child and that
paternity alone does not justify relief under HFCR Rule
60(b)(6). The family court also determined that Father’s
argument that the Cammacks are Caucasian and Child is not did
not justify relief under HFCR Rule 60(b)(6). Furthermore, the
family court determined that Father’s Motion to Set Aside
Default was not brought within a reasonable time after his
(continued . . .)
trial under Rule 59(b) of these rules or to reconsider,
alter, or amend under Rule 59(e);
(3) fraud (whether heretofore denominated intrinsic
or extrinsic), misrepresentation, or other misconduct of an
adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or
(6) any other reason justifying relief from the
operation of the judgment.
The motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceedings was entered or
taken. . . .
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default was entered or his parental rights were terminated, and
that granting the motion would not be in Child’s best interests.
Thus, the family court concluded that Father was not entitled to
relief under HFCR Rule 60(b).
With respect to HFCR 55(c),11 the family court noted
that “a motion to set aside a default must show (1) that the
non-defaulting party will not be prejudiced by the reopening;
(2) that the defaulting party has a meritorious defense; and
(3) that the default was not the result of inexcusable neglect
or a willful act on the part of the moving party.”
The family court determined that Child was a party to
the CPA proceeding. Furthermore, the family court found that
[Child] would be prejudiced by reopening the case because
(1) [Child] has been in foster care for approximately 3
years and [Child] is entitled to permanency and closure;
(2) Mother and Father are not presently able to provide a
safe family home for [Child], even with the assistance of
services; (3) there is no indication when, or if, Father
would be able to provide a safe family home for [Child] if
the default were to be set aside; (4) [Child] is strongly
bonded to [the Cammacks] just as they are to [Child];
(5) [Child] is not bonded to Mother or Father; (6) [Child]
is thriving in his current placement and (7) there are no
compelling reasons documented in the record that would
justify preventing [Child] from permanency and closure.
11 HFCR Rule 55(c) (Supp. 2016) provides:
Rule 55. Default.
. . . .
(c) Setting aside default. For good cause shown the court
may set aside an entry of default and, if a judgment by
default has been entered, may likewise set it aside in
accordance with Rule 60(b) of these rules.
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The family court also determined that “Father does not have a
meritorious defense to the default[]” and that “[t]he default
and the subsequent termination of parental rights was the result
of inexcusable neglect on the part of Father.” Thus, the family
court concluded that “Father has not shown good cause to set
aside the default or the termination of his parental rights as
required by [HFCR] Rule 55(c) . . . .”
The family court accordingly denied Father’s Motion to
Set Aside Default and his Motion to Intervene.
C. ICA Proceedings
On October 16, 2019, Father filed a notice of appeal.
Father argued that the ICA should reverse the family court’s
September 20, 2019 decision denying his Motion to Set Aside
Default. With respect “to the related Findings of Fact and
Conclusions of Law entered by the family court on November 19,
2019[,]” Father argued that the ICA should “reverse the orders,
judgments and decrees set forth therein that reiterate the
[family] court’s denial of his Motion to Set Aside Default, and
also deny his Motion to Intervene.” In his opening brief,
Father raised three points of error.
First, Father argued that the family court mistakenly
concluded that Father was duly noticed and served by
publication, and that the family court had personal jurisdiction
over him. In particular, Father challenged the family court’s
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findings of fact regarding whether DHS knew or should have known
the identity or location of Child’s natural father when DHS
served the unknown natural father by publication, and whether
Father knew or should have known of the ongoing CPA proceeding
from November 2016 to April 2018. Father admitted that service
by publication is permissible pursuant to HRS § 587A-13(c)(2).12
However, Father contended that the family court failed to
inquire into DHS’s efforts to locate the unknown natural father
or make any finding that personal service on Child’s father in
Chuuk was impracticable. Father maintained that if there was
such an inquiry, the family court would have found that Mother
12 HRS § 587A-13 (Supp. 2016) sets forth the requirements for summons and
service of summons in a CPA proceeding and provides in relevant part:
(a) After a petition has been filed, the court shall issue
a summons requiring the presence of the parents[.]
. . . .
(c) The sheriff or other authorized person shall serve the
summons by personally delivering a certified copy to the
person or legal entity being summoned. . . . [P]rovided
that:
. . . .
(2) If the court finds that it is impracticable to
personally serve the summons, the court may order service
by . . . publication . . . . When publication is used, the
summons shall be published once a week for four consecutive
weeks in a newspaper of general circulation in the county
in which the party was last known to have resided. In the
order for publication of the summons, the court shall
designate the publishing newspaper and shall set the date
of the last publication at no less than twenty-one days
before the return date. Such publication shall have the
same force and effect as personal service of the summons.
(Emphasis added.)
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provided DHS with sufficient information to locate Child’s
father. In addition, Father claimed that, even if personal
service was impracticable, service by publication was improper
because the summons was published in the Honolulu Star-
Advertiser, rather than in a newspaper of general circulation in
Chuuk, where Mother initially indicated that Child’s natural
father resided. Thus, Father contended that the service by
publication was void and the family court had no personal
jurisdiction over the unknown natural father.
Second, Father claimed that the family court erred in
denying Father’s Motion to Set Aside Default pursuant to HFCR
Rules 55(c) and 60(b). Father argued that because the service
by publication was void, the default and default judgment were
also void, and thus compliance with HFCR Rule 55(c) was not
required. Furthermore, Father argued that even if compliance
with HFCR Rule 55(c) was required, Father satisfied the
requirements under HFCR Rule 55(c) to set aside the default.
Thus, Father challenged the family court’s findings of fact and
conclusions of law that applied HFCR Rule 55(c) to Father’s
Motion to Set Aside Default.
Father also contended that the family court erred by
concluding that Father was not entitled to relief under HFCR
Rule 60(b) because that rule only applies to a motion seeking
relief from a final judgment. Father maintained that HFCR Rule
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60(b) was inapplicable because no judgment was entered regarding
the default. In the alternative, Father argued that the family
court erred by concluding that HFCR Rule 60(b)(4) was not
applicable in this case, because Rule 60(b)(4) permits a court
to relieve a party if the judgment is void, as it was in this
case due to defective service. Father also argued that HFCR
Rule 60(b)(5) and (6) were applicable in this case, contrary to
the family court’s conclusion. Thus, Father challenged the
family court’s findings of fact and conclusions of law that
applied HFCR Rule 60(b) to Father’s Motion to Set Aside Default.
Third, Father contended that the family court violated
his constitutional right to due process by denying intervention.
Specifically, Father challenged the family court’s FOF 33, which
stated that “on May 22, 2019, a stipulation between the DHS and
the CASA to permit Father’s intervention was determined to be
inappropriate by the Court and was therefore set aside.”
Father conceded that he “did not specify whether his
requested intervention fell under HFCR 24(a) or 24(b).”
However, Father contended that intervention under both
provisions was proper based on the rule’s language. Father
maintained that as Child’s natural father, he retained
visitation rights and financial obligations in relation to
Child, and thus was entitled to intervene, especially given that
both DHS and the CASA agreed to Father’s intervention.
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DHS agreed with Father in its answering brief that the
family court erred by denying Father’s Motion to Intervene
because Father satisfied the requirements for both intervention
of right and permissive intervention. DHS argued Father has a
constitutionally protected interest in the custody and
visitation of Child and that Father’s Motion to Intervene should
have been granted pursuant to HFCR Rule 24(a)(2).13 DHS argued
that Father satisfied the requirements of HFCR Rule 24(a)(2) for
intervention of right because Father’s Motion to Intervene was
timely, in that it was first filed on January 28, 2019, while
his Petition for Paternity and the genetic test results were
still pending. DHS maintained that even if the unknown natural
father’s rights were terminated on February 27, 2018, Father
still had an interest in Child’s custody and visitation once he
was adjudicated as Child’s natural father.
13 HFCR Rule 24 (2015) provides in relevant part:
(a) Intervention of right. Upon timely application
anyone shall be permitted to intervene in an action:
. . . .
(2) when the applicant claims an interest relating to
the property, transaction, or custody, visitation, or
parental rights of a minor child which is the subject of
the action and the applicant is so situated that the
disposition of the action may as a practical matter impair
or impede the applicant’s ability to protect that interest,
unless the applicants [sic] interest is adequately
represented by existing parties.
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DHS also contended that Father satisfied the
requirements for permissive intervention under HFCR Rule
24(b)(1), which permits intervention “when a statute confers a
conditional right to intervene[.]” According to DHS, HRS
§ 587A-33(c) and (d) conferred a statutory right for a child’s
family member to intervene post-termination of parental rights,
“to have the continuing responsibility to support the child and
the opportunity to visit the child at the discretion of the
permanent custodian.”14 DHS pointed out that “Father testified
that he has continued to pay child support for [Child] and that
[Father] has an interest in the custody and visitation of
[Child].” In support of this argument, DHS cited to Father’s
testimony that he (1) started paying child support for Child to
the Child Support Enforcement Agency in March 2019 and
(2) visited with Child on weekends while Child was visiting with
a maternal aunt. DHS asserted that permitting Father to
14 HRS § 587A-33 (Supp. 2014) provides in relevant part:
(c) Unless otherwise ordered by the court or until
the child is adopted, the child’s family member shall
retain, to the extent that the family member possessed the
responsibility prior to the termination of parental rights,
the continuing responsibility to support the child,
including repaying the cost of any and all care, treatment,
or any other service provided by the permanent custodian,
any subsequent permanent custodian, other authorized
agency, or the court for the child’s benefit.
(d) A family member may be permitted visitation with
the child at the discretion of the permanent custodian.
The court may review the exercise of such discretion and
may order that a family member be permitted such visitation
as is in the best interests of the child.
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intervene would not unduly delay or prejudice the “original
parties” as DHS and Child’s guardian ad litem had previously
stipulated to Father’s intervention.
The Cammacks conceded in a separate answering brief
that Father’s parental rights are a constitutionally protected
liberty interest. However, the Cammacks argued that under
federal precedent, Father is entitled to a lesser degree of
constitutional protection due to Father’s lack of an established
substantial relationship with Child.15 According to the
Cammacks, “[p]arental rights do not spring full-blown from the
biological connection between parent and child. They require
relationships more enduring.” The Cammacks asserted that the
family court correctly concluded that Father’s Motion to
Intervene was untimely, as the record demonstrates that Father
was aware of Child’s birth and that he might be Child’s father
in December 2016, yet waited until January 2019 to file his
first Motion to Intervene.
The ICA issued a Memorandum Opinion on September 29,
2020, affirming the family court’s September 20, 2019 decision
15 The CASA filed an answering brief that incorporated by reference the
Cammacks’ answering brief. However, the CASA also wished to clarify that by
stipulating to Father’s intervention, the CASA had “no intention to
circumvent Judge Uale’s decision not to sign the stipulation” or “go around
the direction of Judge Uale.”
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and order denying Father’s Motion to Set Aside Default and
Motion to Intervene.
First, the ICA reviewed the family court’s conclusion
that Father was properly served by publication. The ICA noted
that at the time DHS served Child’s unknown natural father by
publication, the only information DHS had about Child’s father
were Mother’s statements that (1) the unknown natural father was
in Chuuk and wanted Child to go into foster care; and (2) Mother
did not know who the unknown natural father was. The ICA
determined that DHS did not know Child’s father’s name was
“John” when DHS moved to serve the unknown natural father by
publication. The ICA cited this court’s test for whether
service by publication is authorized:
[R]esort to constructive service by publication is
predicated upon necessity, and, if personal service could
be effected by the exercise of reasonable diligence,
substituted service is unauthorized. . . . The test,
however, is not whether it was in fact possible to effect
personal service in a given case, but whether the
complainant reasonably employed knowledge at [their]
command, made diligent inquiry, and exerted an honest and
conscientious effort appropriate to the circumstances, to
acquire the information necessary to enable [them] to
effect personal service on the defendant.
Accordingly, the ICA determined that the family court correctly
found that Father was properly served by publication.
Furthermore, the ICA determined that the service by
publication was not defective because summons for Child’s father
was published in the Honolulu Star-Advertiser for four
consecutive weeks, with a return date more than 21 days after
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the last publication date, in compliance with HRS § 587A-13.
The ICA also rejected Father’s claim that publication in the
Honolulu Star-Advertiser was defective because the notice was
not published in Chuuk, where the unknown natural father
allegedly lived, on the basis that Father was later determined
to be Child’s natural father and lived in Honolulu.
Second, the ICA considered whether the family court
erred by declining to set aside the entry of default and the
termination of Father’s parental rights by default. The ICA
agreed with the family court that in order to set aside the
default and default judgment, Father was required to satisfy
both HFCR Rules 55(c) and 60(b):
[Father]’s default was entered pursuant to HFCR Rule
55. [Father]’s parental rights were terminated while he
was in default, making the termination of parental rights a
default judgment. See In re Doe, 77 Hawaiʻi 109, 114, 883
P.2d 30, 35 (1994) (holding that “an infringement upon
parental custody rights is an appealable decision even
though the requisite finality normally required for appeals
is lacking.”). Accordingly, [Father] was required to
obtain relief under both HFCR Rule 55 and HFCR Rule 60(b).
[Father] had the burden of establishing that: (1) Child
will not be prejudiced by the reopening; (2) [Father] has a
meritorious defense; and (3) [Father]’s default was not the
result of inexcusable neglect or a willful act. [Chen v.
Mah, 146 Hawaiʻi 157, 173-74, 457 P.3d 796, 812-13 (2020)].
The ICA reviewed the family court’s findings of fact that
Mother’s and Father’s testimony was not credible and that Ms.
Kakehi’s testimony was credible. The ICA also reviewed the
family court’s findings of fact regarding Father’s stated
reasons for delay in seeking to set aside his default and
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whether Father knew or should have known that he was Child’s
natural father in December 2016. Furthermore, the ICA reviewed
the family court’s findings of fact regarding Child’s best
interests. The ICA concluded that the family court’s “findings
of fact were supported by substantial evidence in the record.”
In addition, the ICA noted that “[i]t 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.”
The ICA then considered the family court’s conclusions
regarding HFCR Rules 55(c) and 60(b), noting that the family
court determined that Father did not satisfy the requirements to
set aside his default and default judgment pursuant to HFCR
Rules 55(c) or 60(b). The ICA reviewed the family court’s
reasoning for denying Father’s Motion to Set Aside Default
pursuant to HFCR Rules 55(c) and 60(b) and held “that the family
court’s conclusions of law were correct . . . to the extent they
presented mixed questions of fact and law, they were not
‘clearly erroneous,’ were supported by the trial court’s
findings of fact, and reflected an application of the correct
rule of law.”
Third, the ICA considered Father’s claim that the
family court’s denial of his Motion to Intervene deprived Father
of due process. The ICA reasoned that before Father could
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proceed with his motion to intervene, he had to have both his
default and default judgment set aside. Based on the ICA’s
previous conclusion that the family court did not err in
declining to set aside Father’s default and default judgment
after a two-day evidentiary hearing, the ICA held that Father
was not deprived of due process. The ICA also rejected Father’s
claim that Judge Uale abused his discretion and violated the
“law of the case” when he set aside Judge Park’s approval of the
stipulation to allow Father to intervene. The ICA concluded
that Judge Uale provided cogent reasons to set aside the
stipulation because Father did not set aside his default and
default judgment before moving to intervene.
The ICA entered its Judgment on Appeal on October 27,
2020.16 On November 2, 2020, Father filed a timely application
for writ of certiorari.
II. STANDARDS OF REVIEW
A. Family Court Decisions
Generally, the family court possesses wide discretion
in making its decisions and those decision[s] will not be
set aside unless there is a manifest abuse of discretion.
Thus, we will not disturb the family court’s decisions on
appeal unless the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant and its decision clearly exceeded the
bounds of reason.
16 Father filed a Motion for Reconsideration on October 5, 2020, which the
ICA denied because Father presented no “new evidence and/or arguments that
could not have been presented during the earlier” proceedings.
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Fisher v. Fisher, 111 Hawaiʻi 41, 46, 137 P.3d 355, 360 (2006)
(quoting In re Doe, 95 Hawaiʻi 183, 189-90, 20 P.3d 616, 622-23
(2001)).
The family court’s conclusions of law are reviewed de
novo under the right/wrong standard. In re Doe, 101 Hawaiʻi 220,
227, 65 P.3d 167, 174 (2003), as amended (Apr. 22, 2003). Thus,
conclusions of law “are not binding upon an appellate court and
are freely reviewable for their correctness.” Id. (cleaned up).
B. Constitutional Law
“We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard.” In re L.I.,
149 Hawaiʻi 118, 121, 482 P.3d 1079, 1082 (2021) (quoting State
v. Ui, 142 Hawaiʻi 287, 292, 418 P.3d 628, 633 (2018)).
C. Interpretation of Court Rules and Statutory Interpretation
“[W]hen interpreting rules promulgated by the court,
principles of statutory construction apply.” Gap v. Puna
Geothermal Venture, 106 Hawaiʻi 325, 331, 104 P.3d 912, 918
(2004) (citation and internal quotation marks omitted).
This court’s construction of statutes is guided by the
following rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
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meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
State v. Choy Foo, 142 Hawaiʻi 65, 72, 414 P.3d 117, 124 (2018)
(quoting State v. Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170,
1177 (2009)) (internal citation omitted).
III. DISCUSSION
In his application for writ of certiorari, Father
raises the following points of error:
A. Whether the default and default judgment are void for
lack of due process and personal jurisdiction, given
the family court’s failure to follow HRS § 587A-
13(c)(2)?
B. As to application of [HFCR Rules] 55(c) and 60(b),
whether the family court’s decision and the ICA’s
Opinion represents grave errors of law or
inconsistencies with decisions of the Hawaiʻi Supreme
Court and the United States Supreme Court?
C. Whether [Father] was required to set aside default
and the default judgment terminating his parental
rights in order to intervene as the natural father of
[Child]?
With respect to his Motion to Intervene, Father argues
that “[n]o language in HFCR 24, which permits intervention,
requires that a party set aside default before seeking to
intervene.” According to Father, “intervention of right and
permissive intervention are available to ‘anyone’ who meets” the
requirements of HFCR Rule 24(a) and (b), which do not require
setting aside default.
DHS agrees with Father’s arguments and contends that
“[t]he ICA committed grave errors of law or fact when it
affirmed the family’s [sic] court[’s] decision denying Father’s
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Motion to Intervene without discussing HFCR Rule 24 or applying
the right or wrong (de novo) standard of review.” DHS also
contends “that the family court is empowered to enter further
orders it deems to be in the best interest of the children, and
such orders may recognize residual interests in the birth
parents after the termination of their parental rights.”
Furthermore, according to DHS,
Neither the HFCR nor HRS Chapter 587A explicitly
states that a party must successfully set aside a default
prior to proceeding with a motion to intervene.
Regardless, the decision made on either motion will affect
the other. If Father’s Motion to Set Aside Default is
granted then he will regain full party status in the CPA
case as the legal father of the child and, by operation of
law, the order terminating his parental rights will be
reversed. Father would then be given the opportunity to
address safety concerns and reunify with [Child] and his
interest in custody would be revisited, deeming his Motion
to Intervene moot.
On the other hand, if this Court affirms the family
court and ICA’s decisions denying Father’s Motion to Set
Aside the Default, as it should, Father’s parental rights
will remain terminated. However, Father’s statutory
interest in visitation with [Child] remains and it can only
be reviewed judicially through his Motion to Intervene.
For the following reasons, we agree that Father was
not required to set aside the default and default judgment in
order to intervene in the CPA proceeding, and that the family
court should have analyzed Father’s Motion to Intervene under
HFCR Rule 24. However, we reject Father’s arguments that the
ICA erroneously concluded that service by publication did not
violate Father’s due process rights and that the ICA erroneously
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determined that the family court properly denied Father’s Motion
to Set Aside Default pursuant to HFCR Rules 55(c) and 60(b).
A. The ICA did not err when it concluded service by
publication was proper and did not violate Father’s due
process rights.
On certiorari, Father contends that “[t]he [family]
court’s failure to follow the requirements for service of
process by publication violated HRS § 587A-13(c)(2) and the due
process clauses of the Fourteenth Amendment of the United States
Constitution and article I section 5 of the Hawaiʻi Constitution,
which require proper service of process for a court to have
jurisdiction to adjudicate the rights of a party.” According to
Father, “[b]ecause a parent has a fundamental right to the
companionship, care, custody, and management of his or her
child, a parent’s rights must be protected with fundamentally
fair procedures when a permanent termination of parental rights
is sought.” In addition, Father maintains that “[p]arental
rights cannot be denied without an opportunity for them to be
heard at a meaningful time and in a meaningful manner.” Thus,
Father argues that “when termination is sought, due process
requires that the parent be provided with adequate notice of the
termination hearing and an opportunity to protect his or her
interests at the hearing itself.”
Here, service by publication did not violate Father’s
due process rights because DHS did not have, and could not
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obtain, the information necessary to personally serve the
unknown natural father. This court has determined that
“[r]esort to constructive service by publication is predicated
upon necessity, and, if personal service could be effected by
the exercise of reasonable diligence, substituted service is
unauthorized.” Murphy v. Murphy, 55 Haw. 34, 35, 514 P.2d 865,
867 (1973). Mother initially reported to DHS that Child’s
biological father was in Chuuk, but Mother did not provide DHS
with identifying information or any way to contact the potential
father. Then, at the December 9, 2016 temporary foster custody
hearing, Mother’s counsel reported that “[M]other does not know
who [Child’s] father is.” As the family court found, Mother did
not maintain contact with DHS during the CPA proceeding before
termination of her parental rights and “did not provide DHS with
any further information about the identity or location of
[Child’s] father[.]” Thus, DHS did not have reliable
information regarding the identity or location of Child’s
unknown natural father when DHS moved to serve the unknown
natural father by publication on March 2, 2017.
As a result, when DHS served Father by publication in
April and May of 2017, and when Father was defaulted for his
failure to appear after service by publication on June 21, 2017,
“DHS remained unaware of any additional information regarding
[Child’s] father.” Without further information to identify
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Child’s father and without the ability to consistently contact
Mother, DHS was unable to determine the identity of, and
personally serve, Child’s father with the exercise of reasonable
diligence. See id. Therefore, service by publication did not
violate Father’s due process rights because service by
publication was necessary given the circumstances of the CPA
proceeding. See id.B. The ICA correctly determined that the family court did not
err by declining to set aside Father’s default and
termination of Father’s parental rights by default pursuant
to HFCR Rules 55(c) and 60(b).
On certiorari, Father contends that “since the order
for publication of summons is void . . . , the resulting default
and default judgment are also void.” According to Father, “HFCR
[Rule] 55(c) is not applicable because the default is improper.”
However, as discussed above, Father was properly served by
publication because DHS did not have, and could not reasonably
obtain, the necessary information to identify Child’s then-
unknown natural father. Therefore, the ICA correctly determined
that Father’s default and default judgment were not void due to
improper service by publication.
Father also contends that the family court erroneously
denied his Motion to Set Aside Default because he satisfied all
three requirements to set aside a default. As the ICA pointed
out, when Father filed his Motion to Set Aside Default, “parties
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seeking to set aside an entry of default pursuant to HRCP Rule
55(c) [had to] satisfy the three-prong test for HRCP Rule 60(b)
motions.”17 Chen, 146 Hawaiʻi at 174, 457 P.3d at 813. Under the
three-prong test, Father “had the burden of establishing the
following to prevail on [his] motion to set aside entry of
default: (1) the nondefaulting party will not be prejudiced by
the reopening, (2) the defaulting party has a meritorious
defense, and (3) the default was not the result of inexcusable
neglect or a willful act.” Id.
The ICA properly affirmed the family court’s
conclusion that Father did not satisfy the requirements to set
aside the default and default judgment pursuant to HFCR Rules
55(c) and 60(b). Notably, the family court determined that
Mother’s and Father’s testimony was not credible, and thus
Father could not establish that the failure to file his Motion
to Set Aside Default was not the result of inexcusable neglect.
This court does not question the family court’s determination
about Mother’s and Father’s credibility. See Fisher, 111 Hawaiʻi
at 46, 137 P.3d at 360. Thus, for the reasons discussed in the
ICA’s Memorandum Opinion, the family court properly concluded
17 This court’s holding also applied “to the identical language of Rules
55(c) in the District Court Rules of Civil Procedure as well as the Hawaiʻi
Family Court Rules.” Chen, 146 Hawaiʻi at 177 n.21, 457 P.3d at 816 n.21.
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that Father was not entitled to set aside his default and
default judgment pursuant to HFCR Rules 55(c) and 60(b).
C. The ICA erroneously concluded that Father was required to
set aside the default and default judgment before
proceeding with intervention under HFCR Rule 24.
1. The plain language of HFCR Rule 24(a)(2) demonstrates
that Father was not required to set aside the default
and default judgment before proceeding with his Motion
to Intervene.
With respect to HFCR Rule 24(a)(2), Father argues that
he “is the adjudicated natural father of [Child,]” and that
“[h]is purpose in intervening was to protect his interest
relating ‘to the . . . custody, visitation, or parental rights
of [Child,]’ and he was ‘so situated that the disposition of the
action may as a practical matter impair or impede the
applicant’s ability to protect that interest . . . .”18 In
addition, Father contends that “[n]otwithstanding the paramount
interest in the child, this Court has affirmed that parents have
a cognizable and substantial interest in the child, which
interest is constitutionally protected.”
Based on the plain language of HFCR Rule 24(a)(2),
Father was not required to set aside the default and default
18 In their response to DHS, the Cammacks point out that Father’s Motion
to Intervene was based not on any residual interest in visitation, but on
Father’s stated interest in having Child placed in his home. The Cammacks
also assert “[Father’s] Motion to Intervene did not comply with [HFCR Rule
10]” and “[t]he issue of post-termination visitation was never raised,
briefed, or argued during any of the proceedings below.” However, despite
these arguments, the plain language of HFCR Rule 24 required that Father’s
Motion to Intervene be analyzed under HFCR Rule 24 before it was denied.
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judgment before proceeding with his Motion to Intervene. HFCR
Rule 24(a)(2) (2015) provides:
(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervene in an action:
. . . .
(2) when the applicant claims an interest relating to
the property, transaction, or custody, visitation, or
parental rights of a minor child which is the subject of
the action and the applicant is so situated that the
disposition of the action may as a practical matter impair
or impede the applicant’s ability to protect that interest,
unless the applicants [sic] interest is adequately
represented by existing parties.
(Emphasis added.) In addition, this court has determined that
HFCR Rule 24 is generally worded to mandate intervention
when an applicant meets four elements, namely (1) the
application to intervene is timely, (2) the applicant
claims an interest relating to the property, transaction or
custody or visitation of a minor child which is the subject
of the action, (3) the applicant is so situated that the
disposition of the action may as a practical matter impair
or impede the applicant’s ability to protect that interest,
and (4) the applicant’s interest is represented
inadequately by the existing parties to the suit.
In re Doe, 109 Hawaiʻi 399, 410, 126 P.3d 1086, 1097 (2006), as
corrected (Jan. 27, 2006).
The plain language and elements of HFCR Rule 24(a)(2)
do not require setting aside default and default judgment before
proceeding with consideration of the motion to intervene. The
use of the word “shall” demonstrates that intervention is
mandatory when HFCR Rule 24(a)(2)’s requirements are satisfied.
See Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612,
616, 585 P.2d 1265, 1269 (1978) (citing Nat’l Transit Co. v.
Boardman, 197 A. 239, 241 (Pa. 1938)) (“[T]he word ‘shall’ [in a
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statute] is generally regarded as mandatory[.]”). None of these
requirements includes setting aside a default and default
judgment. The word “default” is not used anywhere in the text
of HFCR Rule 24(a)(2). In other words, HFCR Rule 24(a)(2)
requires family courts to allow any “applicant” who satisfies
the requirements to intervene, regardless of whether or not that
person was previously defaulted for failure to appear or that
person’s parental rights were terminated.
In addition, HFCR Rule 24(a)(2) provides only one
exception to mandatory intervention. Under HFCR Rule 24(a)(2),
intervention is mandatory if the rule’s requirements are
satisfied, “unless the applicants [sic] interest is adequately
represented by existing parties.” This is the only exception to
mandatory intervention, and thus there is no exception if an
applicant was previously defaulted for failure to appear or if
their parental rights have been terminated.
Because HFCR Rule 24(a)(2)’s language is “plain and
unambiguous,” effect must be given to its “plain and obvious
meaning,” which does not require Father to set aside the default
and default judgment in order to intervene. See Choy Foo, 142
Hawaiʻi at 72, 414 P.3d at 124. Therefore, the ICA erred in
affirming the family court’s denial of Father’s Motion to
Intervene without analyzing his motion under HFCR Rule 24(a)(2).
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2. The plain language of HFCR Rule 24(b)(1) did not
require Father to set aside the default and default
judgment before proceeding with his Motion to
Intervene.
Father argues that “[p]ermissive intervention under
HFCR 24(b) was also available because sections of the Child
Protective Act . . . confer, in effect, a conditional right to
intervene.” According to Father, HRS § 587A-33(c) and (d) gives
a child’s birth family the responsibility to financially support
the child and the opportunity to visit the child, even after
termination of parental rights. We agree that permissive
intervention may be available to Father, and his Motion to
Intervene should be analyzed under HFCR Rule 24(b)(1) and HRS
§ 587A-33(c) and (d).
The plain language of HFCR Rule 24(b)(1) does not
require setting aside default and default judgment before
proceeding with consideration of the motion to intervene. HFCR
Rule 24(b)(1) (2015) provides:
(b) Permissive Intervention. Upon timely application
anyone may be permitted to intervene in an action:
(1) when a statute confers a conditional right to
intervene[.]
Thus, the plain language of HFCR Rule 24(b)(1) allows
for permissive intervention if a statute provides for a
conditional right to intervene. Here, HRS § 587A-33(c) and (d)
(Supp. 2014) can be read to confer a statutory right to
intervene post-termination of parental rights:
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(c) Unless otherwise ordered by the court or until
the child is adopted, the child’s family member shall
retain, to the extent that the family member possessed the
responsibility prior to the termination of parental rights,
the continuing responsibility to support the child,
including repaying the cost of any and all care, treatment,
or any other service provided by the permanent custodian,
any subsequent permanent custodian, other authorized
agency, or the court for the child’s benefit.
(d) A family member may be permitted visitation with
the child at the discretion of the permanent custodian.
The court may review the exercise of such discretion and
may order that a family member be permitted such visitation
as is in the best interests of the child.
(Emphasis added.)
In the CPA proceeding, Father testified that he began
paying child support for Child in March 2019 and made monthly
payments. Father also testified that he visited Child while
Child was visiting with maternal aunt, thereby demonstrating
Father’s interest in visitation with Child. Based on Father’s
arguments and testimony, HRS § 587A-33(c) and (d) could be read
to provide Father with the necessary statutory right to
intervene for permissive intervention under HFCR Rule 24(b)(1).
Thus, the family court should have determined whether Father’s
child support payments and interest in visiting Child satisfied
the requirements for permissive intervention pursuant to HFCR
Rule 24(b)(1) and HRS § 587A-33(c) and (d).
Additionally, neither HFCR Rule 24(b)(1) nor HRS
§ 587A-33(c) and (d) require setting aside a default and default
judgment before proceeding with a motion to intervene. As with
HFCR Rule 24(a)(2), the word “default” is not used in HFCR Rule
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24(b)(1) or HRS § 587A-33(c) and (d). It follows that the
“plain and obvious meaning” allows for permissive intervention
without first setting aside default and default judgment. See
Choy Foo, 142 Hawaiʻi at 72, 414 P.3d at 124. Therefore, the ICA
erred in affirming the family court’s denial of Father’s Motion
to Intervene because Father’s Motion to Intervene should have
been analyzed under HFCR Rule 24(b)(1) to determine whether HRS
§ 587A-33(c) and (d) allowed for permissive intervention.19
3. Requiring Father to set aside the default and default
judgment before proceeding with his Motion to
Intervene was unreasonable.
“[T]his court is bound to construe statutes so as to
avoid absurd results.” Amantiad v. Odum, 90 Hawaiʻi 152, 161,
977 P.2d 160, 169 (1999) (citing Keliipuleole v. Wilson, 85
Hawaiʻi 217, 222, 941 P.2d 300, 305 (1997)). Furthermore, “[a]
rational, sensible and practicable interpretation of a statute
is preferred to one which is unreasonable[,] impracticable . . .
inconsisten[t], contradict[ory], and illogical[].” Id. at 221-
19 The ICA determined that Judge Uale had cogent reasons to set aside
Judge Park’s ruling allowing Father’s intervention by stipulation because
Father did not set aside his default and default judgment before moving to
intervene. However, because this court concludes that Father was not
required to set aside his default and default judgment before moving to
intervene, Judge Uale lacked cogent reasons to set aside Judge Park’s ruling,
which allowed Father’s intervention by stipulation. See Wong v. City and
Cty. of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983) (“Unless cogent
reasons support the second court’s action, any modification of a prior ruling
of another court of equal and concurrent jurisdiction will be deemed an abuse
of discretion.”).
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22, 941 P.2d at 304-05 (original brackets and citation omitted)
(brackets added).
Requiring Father to set aside the default and default
judgment before proceeding with his Motion to Intervene creates
an illogical and unreasonable result. Here, as DHS points out,
if Father’s Motion to Set Aside Default was granted, Father
would regain full-party status in the CPA proceeding because the
default judgment terminating his parental rights would be
reversed by operation of law. In other words, if Father had
succeeded in setting aside the default and default judgment,
Father would not have needed to intervene because he would have
regained his status as a party. Alternatively, if Father’s
Motion to Set Aside Default was denied, as was the case here,
Father would not have an opportunity for judicial review of his
statutorily provided visitation rights under HRS § 587A-33(d)
without a motion to intervene. Thus, requiring Father to set
aside the default and default judgment before proceeding with
his Motion to Intervene would be unreasonable.
IV. CONCLUSION
Although Father was properly served by publication and
could not establish that he was entitled to relief from the
default and default judgment, the plain and unambiguous language
of HFCR Rule 24 demonstrates that setting aside a default and
default judgment are not required before proceeding with a
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motion to intervene. In addition, a reasonable and logical
interpretation of HFCR Rule 24 demonstrates that setting aside a
default and default judgment are not required because if the
default and default judgment were set aside, a motion to
intervene would be unnecessary. Thus, the family court should
have analyzed Father’s Motion to Intervene under HFCR Rule 24.
Accordingly, we affirm in part and vacate in part the
ICA’s October 27, 2020 Judgment on Appeal, which affirmed the
family court’s September 20, 2019 “Decision and Order Regarding
the Contested Case Hearing on [Father]’s Motion to Set Aside
Default Filed June 5, 2019” denying Father’s Motion to Set Aside
Default and his Motion to Intervene without analyzing the Motion
to Intervene under HFCR Rule 24. We remand the case for further
proceedings consistent with this opinion.
Georgia K. McMillen /s/ Mark E. Recktenwald
for Petitioner/Father-Appellant
/s/ Paula A. Nakayama
Maria F. Casavilla,
/s/ Sabrina S. McKenna
Julio C. Herrera,
Erin K.S. Torres, and /s/ Michael D. Wilson
Patrick A. Pascual
for Respondent-Appellee /s/ Todd W. Eddins
Department of Human Services
Francis T. O’Brien
for Respondents/Intervenors-
Appellees Resource Caregivers
Shelby N. Ferrer
for Respondent Court Appointed
Special Advocates Program
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