Hamilton ex rel. Lethem v. Lethem

• Decision Date: 07 February 2012
• Docket Number: No. SCWC–27580.,SCWC–27580.
• Citation: 270 P.3d 1024,126 Hawai'i 294
• Parties: Lily E. HAMILTON on behalf of Amber J. LETHEM, a minor, Respondent/Plaintiff–Appellee, v. Christy L. LETHEM, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

126 Hawai'i 294

270 P.3d 1024

Lily E. HAMILTON on behalf of Amber J. LETHEM, a minor, Respondent/Plaintiff–Appellee,

v.Christy L. LETHEM, Petitioner/Defendant–Appellant.

No. SCWC–27580.

Supreme Court of Hawai‘i.

Feb. 7, 2012.

Robert H. Thomas and Rebecca A. Copeland (Damon Key Leong Kupchak Hastert), for petitioner/defendant-appellant.

Stephen T. Hioki, for respondent/plaintiff-appellee.

NAKAYAMA, Acting C.J., ACOBA, DUFFY, and McKENNA JJ., and Circuit Judge CRANDALL, in place of RECKTENWALD, C.J., Recused.

Opinion of the Court by ACOBA, J.

We hold that (1) parents have a constitutional right to discipline children inhering in their liberty interest in the care, custody, and control of their children, under the due process clause, article 1, section 5 of the Hawai‘i Constitution, (2) a parent may raise the right of parental discipline in a Hawai‘i Revised Statutes (HRS) § 586–5 show cause hearing in opposition to the continuation of a temporary restraining order (TRO) issued under HRS chapter 586 on allegations of domestic abuse, (3) in such circumstances trial courts shall consider whether the discipline is reasonably related to the purpose of safeguarding or promoting the welfare of the minor in determining whether the parent's conduct constituted abuse or proper discipline, and (4) generally a non-custodial parent retains the right to discipline a child when the child is under his or her supervision. Under the foregoing propositions, we vacate the September 21, 2011 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its June 30, 2011 published opinion, and the October 5, 2005 Order Regarding Temporary Restraining Order of the Family Court of the First Circuit(the court) issued under HRS chapter 586,¹ against Petitioner/Defendant– Appellant Christy L. Lethem (Petitioner) and in favor of his then-fifteen-year-old minor daughter, Amber J. Lethem (Minor) in an HRS chapter 586 petition alleging domestic abuse of Minor brought by Petitioner's ex-wife, Respondent/Plaintiff–Appellee Lily E. Hamilton (Mother or Respondent).

I.

The following essential matters, some verbatim, are from the record and the submissions of the parties.

A.

On September 23, 2005, Mother filed an Ex Parte Petition for a Temporary Restraining Order (TRO) and Statement on behalf of Minor to enjoin Petitioner from contacting, calling, or visiting Minor pursuant to HRS chapter 586. Petitioner had allegedly "physically harmed, injured or assaulted" Minor by "slapping, punching, [and] hitting" her on August 25, 2005. Petitioner had also allegedly subjected Minor to extreme psychological abuse by "showing up at [her] school unannounced, putting [her] down by blaming financial problems on [her], and saying [that] many problems (such as work problems/emotional distress) [were her] fault." The last date alleged for these incidents was September 16, 2005. The petition stated that Minor believed she was in immediate danger of being abused by Petitioner because "of previous actions [by Petitioner,] such as hitting [her] on [August 12 and August 25], showing up at [her] school, and verbally abusing [her] as previously stated."

The court granted the ex-parte TRO the same day it was filed, prohibiting Petitioner from threatening Minor or anyone living with Minor, or contacting, writing, telephoning or otherwise electronically contacting Minor, and from visiting or remaining within 100 yards of Minor for ninety days until December 22, 2005. A show cause hearing was scheduled for October 5, 2005 pursuant to HRS § 586–5(b) as to whether the TRO should continue.

At the hearing, in which Petitioner was represented by counsel, Minor alleged three incidents of abuse. The first allegedly occurred on August 12, 2005. The day before, August 11, 2005, Minor was scheduled to have visitation with Petitioner after school. Minor called Petitioner and told him that she did not need a ride from school because Mother was going to pick her up. This turned out to be a fabrication. Instead, Minor, another teenage girl, and two teenage boys drove to a store to pick up the "morning after pill" for the other girl. That evening, Petitioner called Mother in an attempt to locate Minor, but Mother had not heard from Minor. Petitioner eventually decided to drive to Mother's house. When Petitioner reached Mother's house at around 10:00 p.m., Minor had arrived and Petitioner took Minor back to his home.

The next day, August 12, 2005, Petitioner and Minor spoke. When Petitioner learned what Minor had done, he became very angry. Petitioner informed Minor that he felt she should have told the other girl's parents that their daughter was sexually active and should have allowed them to deal with the situation. Minor testified that she felt she did not have to talk with Petitioner because she had already spoken to Mother about the situation. Minor related that both she and Petitioner were yelling. Petitioner claimed that Minor was "just ranting and raving," and "screaming" at her younger sister. Minor testified that, at some point, Petitioner hit her. Minor claimed that Petitioner struck her "a couple of times" and that Petitioner was attempting to slap her on the face but that she blocked his blows. Petitioner claimed that he only tried to hit Minor on the shoulder because Minor had tried to leave and Petitioner wanted her to stay and talk to him.

Mother was told that Minor and Petitioner were having an argument and called the police. When the police arrived, Minor told them that she was fine and the police left. Minor had no bruises as a result of the incident.

The second incident of alleged abuse took place on August 25, 2005. Minor claimed that she and Petitioner "got into a power struggle." Minor had gone to Petitioner's house that day early in the evening. Petitioner wanted to speak to Minor, but she did not want to talk because she "had to call other friends to get [her] homework and [was] busy." According to Minor, Petitioner wanted to discuss "how [her] day went."² Minor acknowledged that Petitioner waited several hours to speak with her. At around 11:00 p.m., Petitioner again attempted to speak with Minor. Minor did not want to converse and said, "Dad, I have school tomorrow. I'd really like to go to bed." Petitioner allegedly said, "No, we talk now." The two then began to argue. Minor claimed that Petitioner then hit her. She stated, "[A]s I was covering my head, like, he hit me on my arms." Petitioner also allegedly told Minor, "Don't make me do that again." Minor then called her Mother and told her that she was uncomfortable staying with Petitioner.

The last incident of abuse allegedly took place on September 16, 2005. According to Minor, Petitioner visited her school unannounced. The principal went to Minor's classroom and said that he needed to speak to her. Once outside the classroom, the principal told Minor, "Your father is downstairs. We need to handle this now." Minor claimed that Petitioner had been threatening to take her out of private school to discipline her. According to Minor, Petitioner began to say "how everything had been [her] fault," "how [Petitioner's] financial problems were [her] fault," and how Minor's younger sister was "better than" Minor in various ways. Minor testified that she felt Petitioner was "bringing [her] down."

Petitioner claimed that he was simply attempting to discipline Minor. Petitioner stated that Minor was difficult at times, would lie to him, and refused to follow reasonable rules, such as not riding in a car with anyone under the age of twenty-one. He claimed, however, that he never attempted to hit [Minor's] face, that he only visited her at school twice to talk to her, and that he never blamed his financial problems on her.

At the conclusion of the hearing, the court found that the TRO was warranted. The court's reasoning rested on the ground that Petitioner did not have a right to discipline Minor because Mother had sole legal custody. The court stated that if Minor had been visiting Petitioner and he had "caught [her] doing drugs," then Petitioner "ha[d] the right to use physical force, if necessary." However, the court believed that Petitioner's case was different because "we're talking about an ongoing philosophy of how [parents] should run [children's] lives ... [and that,] unfortunately[,] falls with [Mother,] not [Petitioner]."

In the same vein, the court concluded that HRS § 703–309,³ which sets forth the circumstances in which use of force by a parent is justifiable in the context of criminal prosecutions, was relevant,⁴ but that Petitioner could not take advantage of it because Mother had sole legal custody of Minor. The court indicated that it might read HRS § 703–309(1) to afford a baby-sitter "certain rights" to discipline a child when it "becomes necessary regarding activities that happen during their [sic] period of care and custody," but that it was concerned "whether or not what this child did was in fact something that happened during the period of [Petitioner's] care and custody."

There was no mention of the term abuse in the court's oral and written findings. Instead, the court stated that "[t]here's no question in my mind that [Petitioner and Minor] still love each other, and they do have and should have an ongoing relationship." The court stated, however, that it was "struck ... by Section 4(a)(3)⁵ ... [and] really [had] no choice but to make a finding that what happened in this [case] was not parental discipline." From the context, it appears that the court was under the impression that because Mother had sole legal custody, Petitioner was not permitted to discipline Minor on the occasions alleged by Minor.

On November 3, 2005, Petitioner filed his notice of appeal. On March 3, 2006, at Petitioner's request, the court entered its findings of fact (findings) and conclusions of law (conclusions). In its findings, the court only discussed the August 25 incident in which Petitioner had struck Minor at around...