Doe v. Doe

• Decision Date: 13 December 2007
• Docket Number: No. 26471.,26471.
• Citation: 172 P.3d 1067
• Parties: John DOE and Jane Doe, Petitioner-Appellants, v. John DOE and Jane Doe, Respondents-Appellees.
• Court: Hawaii Supreme Court

172 P.3d 1067

John DOE and Jane Doe, Petitioner-Appellants, v. John DOE and Jane Doe, Respondents-Appellees.

No. 26471.

Supreme Court of Hawai`i.

December 13, 2007.

Elizabeth B. Croom, for petitioners-appellants.

Lois K. Perrin of the American Civil Liberties Union on Foundation and Earle A. Partington of The Law Office of Earle A. Partington, for respondents-appellees.

Rochelle Bobroff, for amicus curiae AARP Foundation Litigation.

Dorothy D. Sellers and Deirdre Marie-Iha, Deputy Attorneys General, for amicus curiae State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by NAKAYAMA, J.

Petitioners-Appellants, the grandparents ("Grandparents") of a minor child ("Child"), appeal from the third circuit family court's¹ February 27, 2004 order and February 27, 2004 judgment dismissing their petition for visitation rights filed pursuant to Hawai`i Revised Statutes ("HRS") § 571-46.3.² The solitary issue presented by Grandparents on appeal is whether the family court correctly concluded that HRS § 571-46.3, Hawaii's grandparent visitation statute, which allows the court to award reasonable visitation to a minor child's grandparent if it is "in the best interests of the child," is unconstitutional on its face in light of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

For the following reasons, we hold (1) that HRS § 571-46.3 can be interpreted to comply with Troxel, but (2) that it implicates a fundamental right and is not narrowly tailored to further a compelling governmental interest. We therefore affirm the family court's February 27, 2004 order and judgment.

I. BACKGROUND

Grandparents filed a petition for visitation in the third circuit family court on September 16, 2003. According to Grandparents' petition, Mother and Father divorced in 2002. Child, six years' old at the time of the petition, resided with Mother, who was the sole custodial parent, in the County and State of Hawai`i. Father resided in California. Grandparents asserted that reasonable visitation was in Child's best interest.

Mother filed a motion to dismiss Grandparents' petition, asserting that Hawaii's grandparent visitation statute, which allows the court to award visitation to grandparents if it is in the best interests of the child(ren), is unconstitutional on its face, pursuant to Troxel.

On February 27, 2004, the family court filed an order dismissing Grandparents' visitation petition, ruling, in pertinent part, that "[HRS] § 571-46.3 . . . is unconstitutional on its face in light of the United State's [sic] Supreme Court's decision in [Troxel]. . . ." The family court also filed a judgment that same day.

On March 24, 2004, Grandparents filed a timely notice of appeal.³

On August 15, 2007, the State filed a "Notice As To Possible Mootness." The State informed this court that the present appeal may be moot inasmuch as sole legal custody of Child was transferred to Father in a related case (FC-S No. 04-0094K). As a result, this court filed an order to show cause as to why the present appeal should not be dismissed as moot. Grandparents filed a response on September 7, 2007, stating that they did not oppose dismissal of the case on mootness grounds. Mother, however, filed a response asserting that (1) the case is not moot, and (2) even if moot, the present matter falls within one of the well-recognized exceptions to the mootness doctrine.

II. STANDARDS OF REVIEW

A. Mootness

Generally, this court will not entertain "moot questions or abstract principles of law." Diamond v. State, Bd. of Land & Natural Res., 112 Hawai`i 161, 169, 145 P.3d 704, 712 (2006) (citations omitted).

B. Constitutional Questions

It is well settled that constitutional questions of law are reviewed de novo under the right/wrong standard. See In re Guardianship of Carlsmith, 113 Hawai`i 236, 239, 151 P.3d 717, 720 (2007).

III. DISCUSSION

A. Grandparents' Appeal Falls Within the Public Interest Exception to the Mootness Doctrine.

Mootness is one aspect of this court's prudential rules of justiciability concerned with ensuring the adjudication of live controversies. See Wong v. Bd. of Regents, Univ. of Hawai`i, 62 Haw. 391, 394, 616 P.2d 201, 204 (1980) ("Judicial tribunals sit only for the determination of real controversies between parties who have a legal interest of at least technical sufficiency in the subject-matters embraced in the records of causes pending in courts.") (Quoting Castle v. Irwin, 25 Haw. 786, 792 (1921).). It is well-established in Hawai`i that

[a] case is moot where the question to be determined is abstract and does not rest on existing facts or rights. Thus, the mootness doctrine is properly invoked where "events" . . . have so affected the relations between the parties that the two conditions for justiciability relevant on appeal—adverse interest and effective remedy—have been compromised.

Okada Trucking Co., Ltd. v. Bd. of Water Supply, 99 Hawai`i 191, 195-96, 53 P.3d 799, 803-04 (2002) (citations omitted) (brackets in original) (ellipses in original). Synonymously,

[a] case is moot if it has lost its character as a present, live controversy of the kind that must exist if courts are to avoid advisory opinions on abstract propositions of law. The rule is one of the prudential rules of judicial self-governance founded in concern about the proper—and properly limited—role of the courts in a democratic society. We have said the suit must remain alive throughout the course of litigation to the moment of final appellate disposition to escape the mootness bar.

Kaho`Ohanohano v. State, 114 Hawai`i 302, 332, 162 P.3d 696, 726 (2007) (emphasis removed) (citations omitted). In sum, "[a] case is moot if the reviewing court can no longer grant effective relief." Id. (brackets in original) (emphasis removed) (citations omitted).

Here, Mother asserts that the appeal is not moot for the following reasons:

Whether the statute is constitutional remains a live question because the grandparents' right to visitation were never adjudicated in the related Family Court case. Furthermore, because the Family Court for the Third Circuit retains jurisdiction of the related Family Court case until the child reaches the age of eighteen, mother retains the right to seek a modification of the court order and an award of custody until that time. H.R.S. § 571-46. As such, both mother and the grandparents have a vested interest in a final determination of their rights in this matter.

We disagree. Under the general rule stated, the transfer of custody of Child to Father destroyed the controversy created by the filing of the petition for visitation. Indeed, this court cannot grant Grandparents the remedy they seek on appeal — enforcement of the petition for visitation — inasmuch as the petition expressly requested court-ordered visitation from Mother and Mother no longer has legal custody of Child. See, e.g., Wong, 62 Haw. at 396, 616 P.2d at 205 (holding that the appeal was moot because "there [was] nothing left to grant [the] appellant"); Okada Trucking, 99 Hawai`i at 196, 53 P.3d at 804 (holding that the appeal was moot "because the contract has already been completed" and that the remedy was "no longer available"). Grandparents appear to accept this outcome inasmuch as they expressly state that they do not object to the dismissal of their appeal on mootness grounds. Hence, given the apparent lack of an adverse interest and an effective remedy, the continued vitality of the present appeal has been compromised.

Nevertheless, this court has recognized several exceptions to the mootness doctrine. Of particular relevance here is the public interest exception clarified in Slupecki v. Admin. Dir. Of the Courts, 110 Hawai`i 407, 133 P.3d 1199 (2006). Therein, we stated that "when the question involved affects the public interest and an authoritative determination is desirable for the guidance of public officials, a case will not be considered moot." Id. at 409 n. 4, 133 P.3d at 1201 n. 4.<sup>4</sup> See infra at 7. When analyzing the public interest exception, we look to "(1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question." Kaho`ohanohano, 114 Hawai`i at 333, 162 P.3d at 727 (citing United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai`i 46, 58, 62 P.3d 189, 201 (2002) (Acoba, J., concurring)) (brackets omitted).

Here, there can be no question that it is in the public's interest for this court to review the family court's ruling that Hawaii's grandparent visitation statute is unconstitutional on its face. As to the first factor for consideration, the underlying proceedings are, at bottom, a private battle between Mother and Grandparents over whether Grandparents' access to Child is in Child's best interest. Nevertheless, the family court's wholesale invalidation of HRS § 571-46.3 injects the requisite degree of public concern. As Mother asserts, the family court's ruling stands to affect the fundamental rights of many Hawai`i families. With respect to the second factor, the present matter begs for an authoritative determination inasmuch as the shadow cast over this jurisdiction's grandparent visitation statute creates a significant degree of uncertainty for any public officer involved in the child custody and visitation processes. As to the third factor, there is a strong likelihood that the issue presented will recur. To wit, the family court found the statute unconstitutional on its face. Thus, the issue may arise where any custodial parent is confronted with a petition for visitation under HRS § 571-46.3.

For these reasons, we hold that, notwithstanding the transfer of custody of Child to Father, the present appeal is not rendered moot in light of the public interest exception...