424 P.3d 483 (Hawai‘i 2018), SCAP-17-0000539, W.N. v. S.M.

Docket Nº:SCAP-17-0000539
Citation:424 P.3d 483, 143 Hawai‘i 128
Opinion Judge:POLLACK, J.
Party Name:W.N., Petitioner-Appellant, v. S.M., Respondent-Appellee.
Attorney:Michael S. Zola, Kailua-Kona, for petitioner Timothy Luria, Naoko C. Miyamoto, Honolulu, Katherine M.M. Lukela, for respondent
Case Date:July 30, 2018
Court:Supreme Court of Hawai'i

Page 483

424 P.3d 483 (Hawai‘i 2018)
143 Hawai‘i 128
W.N., Petitioner-Appellant,
S.M., Respondent-Appellee.
No. SCAP-17-0000539
Supreme Court of Hawai‘i
July 30, 2018
Page 484           APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-17-0000539; FC-M NO. 14-1-0034K)          Michael S. Zola, Kailua-Kona, for petitioner          Timothy Luria, Naoko C. Miyamoto, Honolulu, Katherine M.M. Lukela, for respondent          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.           OPINION           POLLACK, J. Page 485           I. INTRODUCTION          In our previous decision in this case, A.A. v. B.B., 139 Hawai‘i 102, 384 P.3d 878 (2016), we vacated the final judgment of the family court denying the petition of A.A. (hereafter W.N.) for joint custody of a minor child with B.B. (hereafter S.M.). The case was remanded to the family court with instructions that it determine whether W.N. established a prima facie case of de facto custody, and if so, that the court render a custody award in the child’s best interest.           On remand, the family court entered an order without holding a further evidentiary hearing or taking additional evidence in which it found that W.N. was not a "fit and proper person" as required to establish a prima facie entitlement to custody of the minor child. W.N. appealed the family court’s adverse ruling, and the request to transfer the case to this court was granted. We conclude that the family court erred in not holding a further hearing to ascertain whether W.N. is presently a fit and proper person and whether a custody award would be in the minor child’s present best interests. Accordingly, we vacate the family court’s 2017 Order and remand the case for a further evidentiary hearing consistent with this opinion. We also provide guidance as to evidentiary matters that may arise on remand.           II. FACTS AND PROCEDURAL HISTORY           W.N. and S.M. entered into a committed relationship in March 2009. In 2011, W.N. and S.M. jointly decided to bring S.M.’s newborn biological granddaughter (Child) into their home to raise her as their daughter. S.M. legally adopted Child, and S.M. and W.N. jointly shared parental care, duties, and responsibilities for Child. W.N., S.M., Child, and S.M.’s teenage son (Son) lived together as a family unit from October 2011 until October 2013. In October 2013, W.N. and S.M. separated, and they entered into a written 50/50 co-parenting agreement for Child. In April 2014, S.M. sent W.N. a letter declaring that he was revoking the 50/50 co-parenting agreement on the basis that it was his parental right to do so.          In May 2014, W.N. filed a petition in the Family Court of the Third Circuit (family court) seeking joint legal and joint 50/50 physical custody of Child (custody petition) pursuant to Hawaii Revised Statutes (HRS) § 571-46(a)(2) (Supp. 2013).1 W.N. asserted that he was the de facto parent of Child and was a fit and proper person to have care, custody, and control of Child. S.M. sought dismissal of the custody petition contending that W.N. was a legal stranger to Child, that HRS § 571-46(a)(2) was unconstitutional, and that W.N. had no standing before the family court.          On October 3, 2014, the family court held an evidentiary hearing on the custody petition (2014 Hearing).2 Scott and Janet Crosier Page 486 (collectively, the Crosiers) testified that each had supervised visitations between W.N. and Child, and they favorably described the interactions between W.N. and Child. W.N. sought to introduce the visitation reports into evidence that the Crosiers had each prepared contemporaneously with the supervised visitations. The family court sustained S.M.’s objections to their admission because they contained hearsay statements of Child, rejecting W.N.’s argument that the statements were not offered for the truth of the matter asserted by Child. The court also sustained S.M.’s foundation objections to the Crosiers using their respective visitation reports to refresh their recollections. As to Janet Crosier, W.N. proffered that the reports would aid her in recalling Child’s behaviors and interactions with W.N. that she could not remember.          Dr. Jamuna Wyss, who was qualified as an expert in parent-child psychological relationships and parenting styles, testified that he taught W.N. parenting techniques. Dr. Wyss testified favorably as to W.N.’s relationship with Child. He also testified that Child would likely suffer "damaging psychological consequences" if W.N.’s relationship with Child was terminated. W.N.’s counsel asked Dr. Wyss if he was aware of any sexual abuse allegations against W.N. and sought to introduce a letter written by Dr. Wyss to Child Welfare Services. The court sustained S.M.’s objection to the admission of the letter and did not allow Dr. Wyss to testify as to his opinion on the allegations because it was outside the scope of his April 25, 2014 clinical note (clinical note).3 Dr. Wyss then testified generally that he did not believe W.N. posed any threat to Child.          Additionally, W.N. sought to introduce progress notes from his individual therapy sessions with Dr. Wyss, as well as S.M. and W.N.’s couples therapy sessions with Dr. Wyss. The court again sustained S.M.’s objection to the introduction of the progress notes as outside the scope of Dr. Wyss’s clinical note. Further, Dr. Wyss testified that he taught W.N. anger management techniques4 and related that, in his opinion, W.N. had made progress on anger management.5           Dr. Jennifer De Costa, a family counselor and a licensed marriage and family therapist, was called by S.M. and qualified as an expert in family behavior and relationships. Dr. De Costa testified that she had treated Son and regularly used written tests to assess Son’s depression and anxiety in treatment. Dr. De Costa stated that she observed a correlation between fluctuations in Son’s test scores and his interactions with W.N. S.M. asked Dr. De Costa if Son had displayed "extreme regression" since W.N. began visitation with Child, and Dr. De Costa responded affirmatively.           Dr. De Costa testified that she also met with Child and initially had no concerns as to Child’s development. After visits started with W.N., however, Dr. De Costa stated that Child began to exhibit "some regressive behaviors." Dr. De Costa answered "yes" when asked hypothetically whether she would have concerns about Child having a custodial relationship with W.N. given his anger management problem, her knowledge of W.N.’s relationship with Son, and Child’s regressive behaviors. Dr. De Costa further testified that she did not think that termination of the relationship would harm Child.           S.M. also called W.N.’s sister, C.N., to testify. C.N. testified that she had concerns about W.N.’s temper, which she had expressed to S.M., and that W.N.’s behavior had not improved.          After the parties’ arguments, the family court ruled that W.N. had not shown a compelling state interest as to why the de facto custody presumption of HRS § 571-46(a)(2) should apply to him under a strict scrutiny standard. The family court denied the custody petition and allowed S.M. to stop all visitations. On December 11, 2014, the family court entered findings of fact, conclusions of Page 487 law, and its final judgment on the custody petition.          W.N. appealed, and following transfer of the case to this court, we held that application of HRS § 571-46(a)(2) would not infringe upon S.M.’s fundamental liberty interests or right to privacy under the Hawai‘i Constitution, and that W.N. was therefore not required to establish a compelling state interest as a prerequisite for the family court to make a de facto custody determination. A.A. v. B.B., 139 Hawai‘i 102, 108, 113-16, 384 P.3d 878, 884, 889-92 (2016). We noted that the record may support a finding that W.N. satisfied all elements of HRS § 571-46(a)(2), which would invoke the de facto custody presumption. Id. at 107 n.8, 384 P.3d at 883 n.8. Additionally, although this court held that any error by the family court in restricting Dr. Wyss’s testimony or excluding the progress notes was harmless under the circumstances, we stated that "if further evidentiary proceedings are held on remand, the family court may revisit its ruling regarding the proffered evidence."6 Id. at 116 n.23, 384 P.3d at 892 n.23. We vacated the final judgment denying W.N.s custody petition and remanded the case to the family court with instructions that the court determine whether W.N. met the requirements for a de facto custody presumption pursuant...

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