In re: AA ( 2020 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2020
07:47 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF AA
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 16-00249)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)
This appeal arises from a proceeding under the Hawai#i
Child Protective Act, Hawaii Revised Statutes (HRS) Chapter 587A.
Appellant AM appeals from the "Decision and Order Regarding the
Contested Hearing on [AM]'s Motion to Set Aside Default Filed
June 5, 2019[,]" (Decision & Order) entered by the Family Court
of the First Circuit1 on September 20, 2019. We affirm the
Decision & Order.
BACKGROUND
Child was born in a Honolulu hospital on November 30,
2016. On December 2, 2016, Child's mother (Mother) told hospital
staff she did not feel safe going home because of domestic
violence by her boyfriend; she wanted Child placed into foster
care. Mother was then interviewed by a social worker. Mother
said she lived with her boyfriend "John" and other of her family
1
The Honorable Bode A. Uale presided.
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members. She reported domestic violence by the boyfriend, and
stated that the boyfriend was not Child's father and did not know
Mother was pregnant. Mother refused to go to a domestic violence
shelter and wanted Child to go into foster care. Child was taken
into protective custody and placed with Resource Caregivers
licensed by the Hawai#i Department of Human Services (DHS).
On December 7, 2016, DHS filed a petition to take
temporary foster custody of Child under HRS §§ 571-11(9)2 and
587A-5,3 initiating the Child Protective Act proceeding below.
The petition named Mother; the name of Child's natural father was
stated as "Unknown."
On December 9, 2016, Mother attended the family court
hearing on the petition with court-appointed counsel. Mother
stipulated to Child being placed in foster custody. A per diem
district family court judge awarded foster custody to DHS,
ordered a service plan for Child, and set a further hearing for
March 2, 2017.
2
On December 7, 2016, HRS § 571-11 provided, in relevant part:
Except as otherwise provided in this chapter, the [family]
court shall have exclusive original jurisdiction in
proceedings:
. . . .
(9) For the protection of any child under chapter
587A[.]
3
On December 7, 2016, HRS § 587A-5 provided, in relevant part:
Pursuant to section 571-11(9), the [family] court shall have
exclusive original jurisdiction:
(1) In a child protective proceeding concerning any
child who is or was found within the State at
the time specified facts and circumstances
occurred, are discovered, or are reported to the
department [of human services]. These facts and
circumstances constitute the basis for the
court's finding that the child's physical or
psychological health or welfare is subject to
imminent harm, has been harmed, or is subject to
threatened harm by the acts or omissions of the
child's family[.]
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Mother failed to appear at the March 2, 2017 hearing,
and was defaulted. Circuit family court judge Bode A. Uale
(Judge Uale) granted DHS's oral motion for leave to serve Child's
natural father by publication. A written order granting the
motion was entered on March 2, 2017. Summons for Child's natural
father was published in the Honolulu Star-Advertiser on April 10,
17, 24, and May 1, 2017, with a return date of June 21, 2017. No
one appeared for the return; Judge Uale entered the default of
Child's natural father on June 21, 2017.
Mother appeared by telephone at a further hearing
conducted on September 11, 2017. Judge Uale set aside Mother's
default, prospectively, without setting aside any previous
orders.
On February 21, 2018, DHS filed a motion to terminate
parental rights. The motion was heard on February 27, 2018.
Mother did not appear at the hearing. Judge Uale again entered
Mother's default and granted DHS's motion, terminating the
parental rights of Mother and the then-unknown natural father.
Letters of permanent custody were issued to DHS. Child was 15
months old at the time.
Judge Uale conducted a review hearing on August 14,
2018. Child was 21 months old. Judge Uale approved adoption as
the proper permanency plan. However, on October 23, 2018 (one
month before Child's second birthday), DHS filed a motion for
immediate review of Child's case. DHS had received an email from
AM on October 9, 2018. AM believed he was Child's natural
father, and "inquired about how he could begin the process of
legally bringing [Child] home." The motion was given a hearing
date of December 6, 2018.
Meanwhile, on November 5, 2018, AM filed a petition for
paternity with the family court, naming Mother and DHS as
respondents (Paternity Action).
At the December 6, 2018 hearing on DHS's motion for
immediate review, Judge Uale ordered that AM "do a genetic test
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as arranged & paid for by DHS if it is not done by [the Hawai#i
Child Support Enforcement Agency] as part of their process[.]"
The hearing on DHS's motion was continued to January 29, 2019.
On January 28, 2019, AM filed a motion to intervene in
the Child Protective Act case. The motion, signed by AM's
attorney, stated that it was based on "the agreements reached
with the parties in [AM]'s related petition in [the Paternity
Action]" and AM's "understanding and belief that this motion is
unopposed." AM re-filed the motion on February 11, 2019,
including a notice of hearing for March 25, 2019.
On February 22, 2019, AM was adjudicated to be Child's
natural father.
Judge Uale conducted the hearing on March 25, 2019.
Child was 2 years, 4 months old. Counsel for DHS reported that
Child had been with Resource Caregivers for over two years, and
was doing well in their home. Judge Uale stated:
Now, as to your motion, [counsel for AM], I'm going to
set it for trial. As I explained to you in the prehearing
conference, this is a -- this is a very -- it's 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. I'm going to set it for trial April 22nd -- excuse
me, May 7th at 8:30. Pretrial conference will be April 22nd
at 9:30. . . .
. . . .
[AM'S COUNSEL]: Just for the -- so I'm clear, on the
trial, is the court granting our motion to intervene so --
THE COURT: No.
[AM'S COUNSEL]: -- we're having a trial on -- on the
--
THE COURT: The trial is on whether I'm going to allow
[AM] to intervene in this case.
[AM'S COUNSEL]: All right.
THE COURT: So your motion to intervene is the subject
of the trial.
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[AM'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 --
[AM'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.
(Emphasis added.) Judge Uale entered a written order setting
AM's motion to intervene for trial on May 7, 2019, with a
pretrial conference set for April 22, 2019.
The April 22, 2019 pretrial conference was conducted by
a per diem district family court judge. DHS and Child's guardian
ad litem informed the family court that they had no objection to
AM's motion to intervene. The per diem judge 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, [AM]'s got his own counsel privately, then by
stipulation, with no objection of the parties, [AM]'s motion
to -- [AM]'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 --
. . . .
[COUNSEL FOR COURT APPOINTED SPECIAL ADVOCATES
PROGRAM]: I -- I'm sorry. Your Honor, I think we just --
we just wanted clarification, if the motion to intervene, if
it starts now or from the very beginning of the case
(indiscernible).
THE COURT: Well -- okay, it's granted and you're made
a party to the case prospectively. So from here on out,
you're noticed on all matters.
The per diem judge entered an order granting AM's motion to
intervene. The order also stated: "All prior consistent orders
shall remain in full force and effect until further order of the
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Court[.]" All parties were ordered to appear at a further
hearing on June 18, 2019.
On May 14, 2019, Resource Caregivers filed their own
motion to intervene in the Child Protective Act case. AM opposed
the motion. Judge Uale heard the motion on May 22, 2019. Judge
Uale informed the parties:
THE COURT: Okay, and I guess [AM] 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
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 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 [AM] 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.
. . . .
And so, [AM's counsel], you need to file a written
motion to -- to set aside default, citing the appropriate
law. And then I'm going to set it for these dates.
(Emphasis added.) A written order granting Resource Caregivers'
motion to intervene and setting aside the order granting AM's
intervention was entered on May 29, 2019. Trial was set for
July 29, 2019, with a pretrial conference on June 26, 2019.
AM filed a "Motion to Set Aside Default" on June 5,
2019. Resource Caregivers filed a memorandum in opposition. AM
filed a supplemental memorandum in support of his motion. Judge
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Uale conducted an evidentiary hearing on AM's motion on July 29,
2019. The hearing could not be completed by the end of the day,
and was continued to August 27, 2019. The parties thereafter
submitted written closing arguments.
The Decision & Order denying AM's motion was entered on
September 20, 2019. AM filed a timely notice of appeal. The
family court entered findings of fact and conclusions of law
pursuant to Rule 52(a) of the Hawai#i Family Court Rules (HFCR)
on November 19, 2019. Child's third birthday occurred less than
two weeks thereafter.
DISCUSSION
AM challenges several of the family court's findings of
fact and conclusions of law. AM contends: (1) the family court
erred in concluding that AM was duly served by publication;
(2) the family court erred in not setting aside the entry of AM's
default and the termination of AM's parental rights by default;
and (3) the denial of AM's motion to intervene deprived AM of his
constitutional right to due process.
1. Service by publication was proper.
The Hawai#i Child Protective Act "creates within the
jurisdiction of the family court a child protective act to make
paramount the safety and health of children who have been harmed
or are in life circumstances that threaten harm." HRS § 587A-2
(Supp. 2016). The statutory provisions are to be "liberally
construed to serve the best interests of the children affected
and the purpose and policies set forth herein." Id.
Service of summons in Child Protective Act cases is
governed by HRS § 587A-13 (Supp. 2016). The statute provides, in
relevant part:
(a) After a petition has been filed, the court shall issue
a summons requiring the presence of the parents[.]
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. . . .
(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[4]
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.
DHS orally moved for leave to serve Child's then-
unknown father by publication during a hearing on March 2, 2017.
The family court granted the motion. AM contends that DHS did
not establish, nor did the family court find, that it was
"impracticable" to personally serve the then-unknown father. AM
challenges the following findings of fact:
16. Mother informed DHS that the 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.
. . . .
19. Throughout the duration of the case prior to
termination of parental rights, Mother did not maintain
contact with the DHS; she did not provide DHS with any
further information about the identity or location of the
child's father; she did not provide DHS with any further
information about the identity or location of the boyfriend
that she claimed was abusing her; she did not attend any
supervised visits; and she did not show any interest in
reunifying with [Child] or engaging in any services offered
by the DHS to address the safety concerns of her home.
4
"Impracticable" means "incapable of being performed or accom-
plished by the means employed or at command." Impracticable, Merriam-Webster,
https://www.merriam-webster.com/dictionary/impracticable (last updated
Aug. 29, 2020).
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Mother was represented by appointed counsel throughout the
case.
20. In April and May of 2017, based upon Mother's
failure/refusal to provide any information regarding the
identity of [Child]'s father, the DHS published notice to
the Unknown Natural Father of [Child].
21. On June 21, 2017, the Unknown Natural Father of
[Child] was defaulted by the Court in consequence of his
failure to appear on the date provided in the publication.
22. At that time, the DHS remained unaware of any
additional information regarding [Child]'s father.
23. Due to the continuing lack of knowledge
regarding the identity or whereabouts of [Child]'s natural
father and Mother's failure to engage in services, maintain
contact with the DHS and parents' inability to provide
[Child] with a safe family home, on February 21, 2018, the
DHS filed a Motion to Terminate Parental Rights.
. . . .
112. During the period between November of 2016 and
April of 2018, [AM] knew or should have known that legal
proceedings were going forward regarding [Child].
AM does not challenge the following findings of fact, which are
binding upon him and this court:
14. After [Child] was born and was still in the
hospital, Mother claimed to DHS that she did not feel safe
to return home because of domestic abuse by her current
boyfriend, whom she identified as "John."
. . . .
18. On March 2, 2017, Mother was defaulted as a
consequence of her failure to appear for a scheduled
hearing.
The family court's findings of fact are reviewed under
the "clearly erroneous" standard. Fisher v. Fisher, 111 Hawai#i
41, 46, 137 P.3d 355, 360 (2006). A finding of fact is clearly
erroneous when the record lacks substantial evidence to support
the finding, or despite substantial evidence in support of the
finding, we are nonetheless left with a definite and firm
conviction that a mistake has been made. Id. "Substantial
evidence" is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion. Id. In this case, the challenged findings
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of fact are all supported by substantial evidence in the record,
and we are not left with a definite or firm conviction that a
mistake has been made.
AM challenges the following conclusions of law:
6. This Court has jurisdiction over this family and
[Child] pursuant to the provisions of The Child Protective
Act.
7. Based upon Mother's failure to provide any
information regarding the identity or other means to locate
[Child]'s father, the DHS published notice to an Unknown
Natural Father pursuant to Rule 17(d)(2), Hawaii Family
Court Rules, which states:
[T]he person intended shall thereupon be considered a
party defendant to the action, as having notice of the
institution of the action against that person, and as
sufficiently described for all purposes, including
service of process, and the action shall proceed
against that person.
8. [AM] was duly noticed and served by this
publication and the entry of default and subsequent
termination of his parental rights upon his failure to
appear based upon this notice was appropriate.
The family court's conclusions of law are ordinarily
reviewed de novo, under the right/wrong standard, "and are freely
reviewable for their correctness." Fisher, 111 Hawai#i at 46,
137 P.3d at 360 (citation omitted). However, when a conclusion
of law presents mixed questions of fact and law, we review it
under the "clearly erroneous" standard because the court's
conclusions are dependent on the facts and circumstances of each
individual case. Estate of Klink ex rel. Klink v. State, 113
Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A conclusion of law
that is supported by the trial court's findings of fact and
reflects an application of the correct rule of law will not be
overturned. Id.
In this case, when DHS served Child's then-unknown
father by publication, the only information DHS had about Child's
father had been provided by Mother, who "stated that baby's
father is in Chuuk and that he wants child to go into foster
care." Mother appeared at the December 9, 2016 hearing on DHS's
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petition with counsel, who stated, "[s]he does not know who the
father is." Mother did not appear at the March 2, 2017 hearing,
when DHS orally moved for leave to serve by publication.
AM incorrectly contends that DHS knew, before March 2,
2017, that Child's father's name was "John." The record shows
that Mother identified her boyfriend, whom she stated was not
Child's father, as "John." It was not until Mother signed a
declaration on June 5, 2019, (more than two years later) that she
identified "someone named John" as the person with whom she had a
sexual encounter in Chuuk, who she originally thought was Child's
father.
The Hawai#i Supreme Court has held:
[R]esort to constructive service by publication is predi-
cated upon necessity, and, if personal service could be
effected by the exercise of reasonable diligence, sub-
stituted 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.
Murphy v. Murphy, 55 Haw. 34, 35, 514 P.2d 865, 867 (1973)
(cleaned up) (citation omitted). We hold that the challenged
conclusions of law were supported by the family court's findings
of fact, and reflect an application of the correct rule of law.
AM argues that publication was defective. We disagree.
The record shows that summons for Child's natural father was
published in the Honolulu Star-Advertiser on April 10, 17, 24,
and May 1, 2017, with a return date of June 21, 2017. The
publication — 4 consecutive weeks, with a return date more than
21 days after the last publication date — complied with HRS
§ 587A-13. AM's contention that "he does not regularly read
newspapers" is irrelevant because the Star-Advertiser is "a
newspaper of general circulation" in Honolulu, where AM lives.
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AM argues that publication should have been made in
Chuuk, where Mother said Child's father lived. We disagree. AM,
who was later determined to be Child's natural father, did not
live in Chuuk. AM lived in Honolulu. We hold that summons was
properly served upon AM by publication in the Honolulu Star-
Advertiser.
2. The family court did not err by declining to
set aside the entry of AM's default and the
termination of AM's parental rights by default.
The family court's Decision & Order was entered on
September 20, 2019. At that time, a party seeking to set aside
an entry of default was required to satisfy the three-prong test
set forth in BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 549 P.2d 1147
(1976), abrogated by Chen v. Mah, 146 Hawai#i 157, 457 P.3d 796
(2020). See Chen, 146 Hawai#i at 177, 457 P.3d at 816 (noting
that before January 30, 2020, party seeking to set aside entry of
default pursuant to HRCP Rule 55(c) must satisfy three-prong BDM
test for Hawai#i Rules of Civil Procedure (HRCP) Rule 60(b)
motions). That standard also applied to the identical language
of the HFCR. Id. at 177 n.21, 457 P.3d at 816 n.21.
HFCR Rule 55 states, in relevant part:
(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.
HFCR Rule 60 states, in relevant part:
(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
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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.
AM's default was entered pursuant to HFCR Rule 55.
AM's parental rights were terminated while he was in default,
making the termination of parental rights a default judgment.
See In re Doe, 77 Hawai#i 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, AM was required
to obtain relief under both HFCR Rule 55 and HFCR Rule 60(b). AM
had the burden of establishing that: (1) Child will not be
prejudiced by the reopening; (2) AM has a meritorious defense;
and (3) AM's default was not the result of inexcusable neglect or
a wilful act. Chen, 146 Hawai#i at 173-74, 457 P.3d at 812-13.
The family court made the following findings of fact:
12. On December 2, 2016, the DHS assumed placement
responsibility of [Child] via police protective custody
because of Threat of Abuse and Threat of Neglect.
13. [Child]'s Date of Entry into Foster Care was
December 9, 2016.
14. After [Child] was born and was still in the
hospital, Mother claimed to DHS that she did not feel safe
to return home because of domestic abuse by her current
boyfriend, whom she identified as "John."
15. Mother refused to enter a domestic violence
shelter and requested that [Child] be placed in foster care.
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16. Mother informed DHS that the 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.
17. On December 9, 2016, an initial temporary foster
custody return hearing took place and at that hearing Mother
appeared with counsel and voluntarily stipulated to foster
custody, adjudication of the Petition, the jurisdiction of
the Court and the Family Service Plan, dated December 6,
2016.
18. On March 2, 2017, Mother was defaulted as a
consequence of her failure to appear for a scheduled
hearing.
19. Throughout the duration of the case prior to
termination of parental rights, Mother did not maintain
contact with the DHS; she did not provide DHS with any
further information about the identity or location of the
child's father; she did not provide DHS with any further
information about the identity or location of the boyfriend
that she claimed was abusing her; she did not attend any
supervised visits; and she did not show any interest in
reunifying with [Child] or engaging in any services offered
by the DHS to address the safety concerns of her home.
Mother was represented by appointed counsel throughout the
case.
20. In April and May of 2017, based upon Mother's
failure/refusal to provide any information regarding the
identity of [Child]'s father, the DHS published notice to
the Unknown Natural Father of [Child].
21. On June 21, 2017, the Unknown Natural Father of
[Child] was defaulted by the Court in consequence of his
failure to appear on the date provided in the publication.
22. At that time, the DHS remained unaware of any
additional information regarding [Child]'s father.
. . . .
24. On February 27, 2018, the parental rights of
[Child]'s parents were terminated.
. . . .
35. [AM]'s Motion to Set Aside Default was filed on
June 5, 2019, more than one year after the entry of the
Entry of Default on June 21, 2017, and more than one year
after [AM]'s parental rights had been terminated on
February 27, 2018.
. . . .
42. [Child] was placed with [Resource Caregivers] on
December 2, 2016[,] and has been continuously in their care
since that time.
. . . .
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49. [Resource Caregivers] wish to adopt [Child] and
have filed their own Petition for Adoption in FC-A No.
19-1-6097.
. . . .
50. During the hearing [on AM's motion to set aside
default] the Court received testimony from [AM], Mother, and
DHS social worker, Lena Kakehi.
51. All parties stipulated that DHS social worker
Lena Kakehi was an expert with regard to child protective
services and child welfare services and she was so qualified
by the Court.
. . . .
59. Mother claimed to Ms. Kakehi that she did not
know the identity of [Child]'s father.
. . . .
64. Ms. Kakehi testified that in her opinion the
fact that Mother lied about events pertinent to this case
and [Child]'s safety constituted a safety concern regarding
her ability to be protective and provide a safe home for
[Child].
65. Ms. Kakehi testified that in her opinion the
fact that Mother did not participate in any services
constituted a safety concern regarding her ability to
provide a safe home for [Child] and showed a lack of
commitment to the child.
66. Ms. Kakehi testified that in her opinion the
fact that Mother's parental rights had been terminated
without any appeal on Mother's part constituted a safety
concern regarding her ability to provide a safe home for
[Child].
67. Mother's relationship with [AM] has continued to
the present day and it is their plan that Mother would be
the primary caretaker for [Child] should Father's default be
set aside.
68. Ms. Kakehi testified that in her opinion Mother
and [AM] would not presently be able to provide a safe
family home for [Child].
69. The testimony of Ms. Kakehi was credible.
70. Mother and [AM] are presently not able or
willing to provide a safe family home for [Child], even with
the assistance of services and would not be able to do so
within the reasonably foreseeable future.
. . . .
73. Mother testified that after she left Hawaii and
went to Chuuk on March 25, 2016, she met a man at a store,
and two days later had sexual relations with him. She said
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that the sex was consensual. She also testified that she
met the man in Hawaii and knew him for three days while he
was in Hawaii. She testified that she did not know the
man's last name and knew him only as "John." Mother
testified at one time that she thought "John" was the only
possible father for [Child] and at other times she testified
that she was not sure whether the father was "John" or [AM].
. . . .
76. Mother admitted that after she was discharged
from [the hospital] after the birth of [Child], she was
transferred to the psychiatric ward at Castle Hospital,
where she stayed for four days.
. . . .
78. After she was discharged from the Castle
psychiatric ward Mother lived in her car for a period of
time because she did not want to return to [AM].
. . . .
80. In December of 2016, after Mother returned to
[AM], he found the medical records of her discharge from
[the hospital] and was aware that she had given birth during
the time that she was in [the hospital].
. . . .
83. Based upon the Court's observation of Mother's
demeanor and the contradictory testimony that she gave
during the trial, Mother's testimony was not credible.
84. Mother's stated reasons for not telling [AM] of
her pregnancy are not credible.
85. Mother's stated reasons for allegedly hiding her
pregnancy from [AM] are not credible.
86. Mother's stated reasons for hiding [Child]'s
birth from [AM] are not credible.
87. Mother's claim that there was no domestic
violence in her relationship with [AM] is not credible.
. . . .
96. Mother went to Chuuk shortly after she became
pregnant with [Child] and did not return to Hawaii until
approximately one month before [Child] was born.
97. [AM] and Mother lived together after she
returned to Hawaii from Chuuk.
98. [AM] testified that he was not aware that Mother
was pregnant during the month preceding [Child]'s birth
claiming she did not look that big and also claiming that he
did not see her without her clothes on during that period.
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99. [AM] claims that he does not remember if he and
Mother had sex during that period but said that if they did,
they did not utilize the "missionary" position so he would
not have noticed her pregnancy.
100. [AM]'s testimony that he did not know of
Mother's pregnancy before she gave birth was not credible.
101. [AM]'s testimony that he did not have intimate
relations with Mother after she returned to Hawaii is not
credible.
102. [AM]'s claim that he does not remember if he saw
Mother without her clothes on during that period is not
credible.
103. [AM] testified that he first became aware that
Mother had given birth to [Child] during the month of
December 2016 when he found records from [the hospital] in
her car.
104. [AM] claims that he did not at that time perform
any calculation to determine if he was possibly the father
of [Child].
. . . .
106. [AM]'s claim that he did not perform any
calculation to determine if he was possibly the father of
[Child] is not credible.
107. As of December 2016, when [AM] became aware of
[Child]'s birth and the date of [Child's] birth[,] [AM] knew
or reasonably should have known that he was a possible
father of [Child].
108. [AM] claimed that Mother did not tell him
anything about any court proceedings.
109. [AM] claimed that he did not know anything about
adoption proceedings and said that as far as he knew the
child had been adopted by that time.
. . . .
111. [AM]'s testimony that he did [not] know anything
about adoption proceedings is not credible. . . .
112. During the period between November of 2016 and
April of 2018, [AM] knew or should have known that legal
proceedings were going forward regarding [Child].
. . . .
117. [AM] claimed that the only person that Mother
had dealt with regarding [Child] was DHS social worker Linda
Kakehi when in fact Mother also had court-appointed counsel
who represented her throughout the [Child Protective Act]
proceeding.
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118. No explanation was offered for their failure to
contact Mother's court-appointed counsel.
119. [AM] claimed that he and Mother went to the DHS
office where Ms. Kakehi worked every three weeks from the
end of May 2018 to early October of 2018 without ever making
contact with Ms. Kakehi.
120. No explanation was offered for their failure
during this period to call Ms. Kakehi on her direct line or
to send her an email since they also had her email address.
121. No explanation was offered for their failure to
find out the name of Ms. Kakehi's supervisor or contact
someone else at the DHS regarding the status of [Child]'s
case.
122. Given the information available to [AM] and
Mother, the delay in contacting the DHS and making known his
claim that he was the father of [Child] was not reasonable.
. . . .
127. Based upon his claimed education and business
experience, [AM]'s delay in consulting with or retaining the
services of an attorney was not reasonable.
128. No explanation was offered for [AM'S] failure to
file a motion seeking to set aside the default before
June 5, 2019.
129. The delay in filing a motion to set aside the
default was not reasonable.
130. [AM] did not appeal the termination of his
parental rights.
131. [AM] knew or should have known that [Child] was
his child since December of 2016, and it was a consequence
of his own inexcusable inaction that the Motion to Set Aside
Default was not filed until June 5, 2019.
132. Based upon the Court's observation of [AM]'s
demeanor and the contradictory testimony that he gave during
the trial, [AM]'s testimony was not credible.
133. [Child] has been in foster care with [Resource
Caregivers] for almost 3 full years.
134. [Child] has no significant relationship with
[AM] at this point.
135. [Child] has no significant relationship with
Mother at this point.
136. [Child] has been thriving in the care of
[Resource Caregivers] and is bonded to them as they are
bonded to him.
137. [Child] deserves permanency at this point.
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. . . .
141. It would be extremely prejudicial and harmful to
[Child] to remain any longer in the foster care system
without providing [Child] with closure and permanency.
142. It is not in [Child]'s best interests for
permanency to be delayed in light of all the delays that
have occurred during this case so far.
These findings of fact were supported by substantial evidence in
the record. In addition, "[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." Fisher, 111 Hawai#i at 46, 137 P.3d at 360
(citation omitted).
The family court entered the following conclusions of
law, some of which are actually mixed questions of fact and law:
6. This Court has jurisdiction over this family and
[Child] pursuant to the provisions of The Child Protective
Act.
7. Based upon Mother's failure to provide any
information regarding the identity or other means to locate
[Child]'s father, the DHS published notice to an Unknown
Natural Father pursuant to Rule 17(d)(2), Hawaii Family
Court Rules[.] . . .
8. [AM] was duly noticed and served by this
publication and the entry of default and subsequent
termination of his parental rights upon his failure to
appear based upon this notice was appropriate.
. . . .
11. The Court is without jurisdiction to consider a
motion based upon Rule 60(b)(1), (2), or (3), Hawaii Family
Court Rules, if the motion is made more than one year after
the entry of the order being challenged. Child Support
Enforcement Agency v. Doe, 98 Haw. 499, 51 P.3d 366[](2002).
12. Since the Motion to Set Aside Default filed by
[AM] herein was filed more than one year after the entry of
default against [AM] and more than one year after the entry
of the order terminating his parental rights, this Court
does not have jurisdiction to entertain a motion relating to
either of those orders based upon Rule 60(b)(1), (2), or
(3), Hawaii Family Court Rules.
13. Rules 60(b)(4) and (5), Hawaii Family Court
Rules, are not applicable to the facts of this case.
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14. Relief pursuant to Rule 60(b)(6) is
extraordinary and the movant must show: (1) that the motion
is based on some reason other than those specifically stated
in subdivisions (1) through (5); (2) the reason is such to
justify the relief; and (3) that the motion is made within a
reasonable time. Hayashi v. Hayashi, 4 Haw. App. 286, 666
P.2d 171 (1983); In re: RBG, 123 Haw. 1, 229 P.3d 1066
(2010).
15. Any of [AM]'s claims that are based upon reasons
that fall within Rules 60(b)(1), (2), or (3) may not be
asserted as a reason to justify relief under Rule 60(b)(6).
16. [AM] claimed that the fact that he is [Child]'s
birth father was a sufficient reason for the Court to grant
relief under Rule 60(b)(6).
17. The fact that [AM] is [Child]'s birth father, in
and of itself, is not a reason to justify relief under Rule
60[(]b)(6), Hawaii Family Court Rules. Quilloin v. Walcott,
434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979);
and with Lehr v. Robertson, 463 U.S. 248 (1983)[.]
18. [AM] has no meaningful or substantial
relationship with [Child].
19. In the absence of any evidence of a meaningful
or substantial relationship between [AM] and [Child], the
fact that he is [Child]'s birth father is not a reason to
justify relief under Rule 60(b)(6), Hawaii Family Court
Rules. In re: I.S., 2007 Haw. App. Lexis 675 (App. 2007).
20. [AM] claimed that the fact that [Resource Care-
givers] are Caucasian and [Child] is not is a sufficient
reason for the Court to grant relief under Rule 60(b)(6).
21. The fact that [Resource Caregivers] are
Caucasian and [Child] is not is not a reason to justify
relief under Rule 60(b)(6), Hawaii Family Court Rules. In
the Matter of J.N., 158 Misc. 2d 97, 601 N.Y.S.2d 215 (Family
Court of New York, New York County 1993).
22. [AM] has not presented any other reason that
would justify relief under Rule 60(b)(6), Hawaii Family
Court Rules.
23. It is not in [Child]'s best interests to grant a
motion to set aside default at this point in the case.
24. [AM]'s Motion to Set Aside Default has not been
brought within a reasonable time after the Default was
entered.
25. [AM]'s Motion to Set Aside Default has not been
brought within a reasonable time after termination of [AM's]
parental rights.
26. [AM] has not presented reasons that would
justify a claim for relief under Rule 60(b), Hawaii Family
Court Rules.
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27. With regard to Rule 55(c), Hawaii Family Court
Rules, 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. BDM, Inc., v. Sageco, Inc., 57 Haw. 73, 549
P.2d 1147 (1976).
28. [Child] is a party to this proceeding. HRS
§[ ]587A-4.
29. [Child] would be prejudiced by reopening the
case because (1) he has been in foster care for
approximately 3 years and he is entitled to permanency and
closure[ ](In the Interest of T Children, 113 Haw. 492, 499,
155 P.3d 675, 682 (App. 2007)); (2) Mother and [AM] 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, [AM] 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 [Resource Caregivers] just
as they are to him; (5) [Child] is not bonded to Mother or
[AM]; (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.
30. [AM] does not have a meritorious defense to the
default.
31. [AM] has not shown good cause to set aside the
default or the termination of his parental rights as
required by Rule 55(c), Hawaii Family Court Rules.
32. [AM] has not satisfied the requirements of Rule
60(b) or Rule 55, Hawaii Family Court Rules.
33. The default and the subsequent termination of
parental rights was the result of inexcusable neglect on the
part of [AM].
We hold that the family court's conclusions of law were correct,
Fisher, 111 Hawai#i at 46, 137 P.3d at 360; 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. Klink,
113 Hawai#i at 351, 152 P.3d at 523.
3. AM Was Not Denied Due Process.
AM argues that the family court's denial of his motion
to intervene violated his "due process rights." AM had been
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defaulted before he moved to intervene, and a default judgment
was entered. AM had to have both his default and the default
judgment set aside before he could have standing to intervene.
The family court conducted a 2-day evidentiary hearing on AM's
motion to set aside the entry of his default and the default
judgment. As was discussed above, the family court did not err
in declining to set aside the entry of default or the default
judgment. We hold that AM was not deprived of due process.
AM argues that Judge Uale violated the "law of the
case" when he set aside the per diem judge's approval of the
parties' stipulation to allow AM to intervene. It is true that
in cases upon which more than one judge has presided, "the usual
practice of courts to refuse to disturb all prior rulings in a
particular case" is referred to as the "law of the case[.]" Chun
v. Bd. of Trs. of Emps.' Ret. Sys., 92 Hawai#i 432, 441, 992 P.2d
127, 136 (2000) (citation omitted). "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." Wong v. City & Cty. of
Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983) (citations
and emphasis omitted). The law of the case doctrine
does not, however, have the inexorable effect of res
judicata and does not preclude the court from reconsidering
an earlier ruling if the court feels that the ruling was
probably erroneous and more harm would be done by adhering
to the earlier rule than from the delay incident to a
reconsideration and the possible change in the rule of law
to be applied. In fact, it has been noted that, so long as
a trial court retains jurisdiction, it always has the power
to reexamine, modify, vacate, correct and reverse its prior
rulings and orders.
Chun, 92 Hawai#i at 441, 992 P.2d at 136 (cleaned up) (citations
omitted).
In this case, Judge Uale had "cogent reasons" to set
aside the per diem judge's ruling because AM failed to set aside
his default, or the judgment terminating his parental rights,
before moving to intervene. Judge Uale did not abuse his
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discretion by vacating the per diem judge's order allowing AM to
intervene while AM was still in default.
CONCLUSION
For the foregoing reasons, the "Decision and Order
Regarding the Contested Hearing on [AM]'s Motion to Set Aside
Default Filed June 5, 2019[,]" is affirmed.
Dated: Honolulu, Hawai#i, September 29, 2020.
On the briefs:
/s/ Katherine G. Leonard
Georgia K. McMillen, Presiding Judge
for Appellant AM.
/s/ Derrick H.M. Chan
Clare E. Connors, Associate Judge
Nara E. Sitachitta,
Julio C. Herrera, /s/ Keith K. Hiraoka
for Petitioner-Appellee Associate Judge
Department of Human Services.
Francis T. O'Brien,
for Appellees-Intervenors Resource Caregivers.
Shelby N. Ferrer,
for Appellee Court Appointed
Special Advocates Program.
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