In re Interest of AB, CAAP-18-0000010

• Citation: 430 P.3d 893 (Table)
• Decision Date: 30 November 2018
• Docket Number: NO. CAAP-18-0000010,CAAP-18-0000010
• Parties: In the INTEREST OF AB
• Court: Court of Appeals of Hawai'i

430 P.3d 893 (Table)

In the INTEREST OF AB

NO. CAAP-18-0000010

Intermediate Court of Appeals of Hawai‘i.

November 30, 2018

On the briefs:

Peter L. Steinberg, Madison, WI, for Appellant.

Sandra L.S. Freitas, Julio C. Herrera, Deputy Attorneys General, for Appellee.

(By: Ginoza, Chief Judge, Fujise and Leonard, JJ.)

SUMMARY DISPOSITION ORDER

Proposed Intervenor-Appellant KL (KL) appeals from the following orders entered by the Family Court of the Third Circuit (Family Court) :¹ (1) Order Awarding Permanent Custody, filed on April 3, 2017 (Order Awarding Permanent Custody); (2) Order Continuing Permanent Custody, filed on July 31, 2017 (Order Continuing Permanent Custody) ; (3) Order Denying Motion to Intervene, filed on October 9, 2017 (Order Denying Intervention); and (4) Order Denying Motion for Reconsideration of Order Entered October 9, 2017, Denying Motion to Intervene, filed on December 21, 2017 (Order Denying Reconsideration) . KL filed a Notice of Appeal on January 5, 2018.

On appeal, KL contends that the Family Court: (1) plainly erred when it entered the Order Awarding Permanent Custody; (2) plainly erred when it entered the Order Continuing Permanent Custody; (3) erred in entering the Order Denying Intervention; and (4) abused its discretion in entering the Order Denying Reconsideration. KL states that the relief she is seeking from this court is to vacate the Order Awarding Permanent Custody and award permanent custody of AB to her.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve KL’s points of error as follows:

(1) Even if KL had standing to oppose the award of permanent custody to the State of Hawai‘i, Department of Human Services (DHS) ,² this court lacks appellate jurisdiction over KL's appeal from the Order Awarding Permanent Custody because the appeal is untimely. Appeals must be taken "in the manner and within the time provided by the rules of court." Hawaii Revised Statutes (HRS) § 641-1(c) (2016). Pursuant to HRS § 571-54 (2006), "[a]n interested party, aggrieved by any order or decree of the [family court], may appeal to the intermediate appellate court.... upon the same terms and conditions as in other cases in the circuit court, and review shall be governed by chapter 602, except as hereinafter provided." Rule 3 of the Rules Expediting Child Protective Appeals requires that a notice of appeal be filed within fifteen days after entry of an appealable judgment, order, or decree, but further provides that if the appeal "is otherwise filed within the time permitted by Rule 4 of the Hawai‘i Rules of Appellate Procedure [ (HRAP) ], the appeal shall not be dismissed for lack of jurisdiction[.]" HRAP Rule 4(a)(1) provides that a notice of appeal "shall be filed within 30 days after entry of the judgment or appealable order." (Emphasis added).

The Order Awarding Permanent Custody was entered on April 3, 2017. This final order was immediately appealable. In re Doe, 77 Hawai‘i 109, 114-15, 883 P.2d 30, 35-36 (1994). KL filed the Notice of Appeal on January 5, 2018. Therefore, the appeal was untimely. The failure to timely file a notice of appeal is a jurisdictional defect that cannot be waived by the parties or disregarded by the court. Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986). Therefore, this court lacks jurisdiction to review the Order Awarding Permanent Custody.

(2) Similarly, even if KL had standing to appeal from the Order Continuing Permanent Custody, this court lacks appellate jurisdiction over KL's appeal from the Order Continuing Permanent Custody because the appeal is untimely. The Order Continuing Permanent Custody, entered on July 31, 2017, continued AB's Permanent custody with DHS, but modified AB's foster custody placement, and was appealable within thirty days of its entry. See, e.g., In re Doe, 7 Haw. App. 547, 551, 784 P.2d 873, 877 (1989) (GAL's 11/28/88 notice of appeal was timely filed from (1) 11/9/88 order denying reconsideration of 10/20/88 order transferring foster custody and (2) the 10/20/88 order transferring foster custody), overruled on other grounds by In re AS, 130 Hawai‘i 486, 312 P.3d 1193 (App. 2013) ; In re M.M., No. 29022, 2008 WL 5238611 at *1 (Haw. App. Dec. 17, 2008) (SDO) (Intervenors' 2/22/08 notice of appeal was timely filed from 1/29/08 order that denied their request to place M.M. in their custody rather than current foster parents). KL filed the Notice of Appeal on January 5, 2018. Therefore, the appeal was untimely and this court lacks jurisdiction to review the Order Continuing Permanent Custody.

(3) KL argues that the Family Court erred in denying her August 21, 2017 motion to intervene based on lack of standing, rather than addressing the merits of KL's challenge to DHS's decision, which was approved and adopted by the Family Court in the Order Continuing Permanent Custody, to change AB's resource caregiver placement from KL to AB's maternal great-aunt and her husband (SH and JH) , with whom AB was visiting in New Hampshire, pursuant to a prior order. KL argued that she had a right to intervene based on her hanai relationship with AB and that KL's minor child, TL, had a right to be considered in deciding AB's permanent placement because TL had a blood sibling relationship with AB. KL also stated that she wished to adopt AB. With the motion to intervene, KL also submitted a motion for emergency change of placement, nunc pro tunc, from July 13, 2017.

KL contends that the Family Court erred in not recognizing her standing at the September 7, 2017 hearing on the motion to intervene because, at a July 13, 2017 hearing, the court had previously recognized KL's standing in this case. However, the Family Court did not recognize KL as having standing to be a party to these termination proceedings during the July 13, 2017 hearing. After DHS objected to KL speaking at the hearing, the Family Court noted KL was still the resource caregiver at that time and allowed her to speak. Allowing KL to address the court because she was a resource caregiver is consistent with HRS § 587A-14(d) (2006), but does not constitute recognition as a party. The Family Court made no finding at the July 13, 2017 hearing that it was in AB’s best interest to allow KL to participate in this termination proceeding as a party or a person with standing to be a party. Moreover, contrary to KL's argument on appeal, KL did not and could not have orally requested to intervene during that hearing because a motion to intervene under Hawai‘i Family Court Rules (HFCR) Rule 24(c) must be made in writing.

Here, DHS argued and the Family Court agreed that KL failed to establish a right or grounds for permission to intervene in this child protective action pursuant to HFCR Rule 24(a) or (b). In her motion to intervene, KL claimed a right of intervention pursuant to HFCR Rule 24(a) and (c). HFCR Rule 24 provides, in relevant part:

Rule 24. INTERVENTION.

(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action:

(1) when a statute confers an unconditional right to intervene; or

(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 interest is adequately represented by existing parties.

(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; or

(2) when an applicant's claim or defense and the main action have a question of law or fact in common.

When a party to an action relies for ground of claim or defense upon any statute, ordinance or executive order administered by an officer, agency or governmental organization of the State or a county, or upon any regulation, order, requirement or agreement issued or made pursuant to the statute, ordinance or executive order, the officer, agency or governmental organization upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the ground therefor and shall be accompanied by a pleading setting forth the claim for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.

(Emphasis added).

Although not contained in the record on appeal in this case, it appears that some time prior to the Family Court's September 1, 2017 hearing on KL's motion to intervene, petitions for the adoption of AB had been submitted on behalf of KL and on behalf of SH and JH.

As set forth above, HFCR Rule 24(a) (2) requires a family court to permit intervention by anyone who claims an interest in the custody or visitation of the subject minor child when the applicant is "so situated that the disposition of the action may as a practical matter impair...