In re Guardianship of Doe

• Decision Date: 19 May 2000
• Docket Number: No. 22469.,22469.
• Citation: 93 Haw. 374,4 P.3d 508
• Parties: In the Matter of the GUARDIANSHIP OF Jane DOE, A Minor
• Court: Hawaii Court of Appeals

4 P.3d 508

93 Haw. 374

In the Matter of the GUARDIANSHIP OF Jane DOE, A Minor

No. 22469.

Intermediate Court of Appeals of Hawai`i.

May 19, 2000.

Michael A. Glenn, on the briefs, for Mother-Appellant.

P. Gregory Frey and Sheila Sue-Noguchi (Coates & Frey), on the briefs, for Grandparents-Appellees.

BURNS, C.J., WATANABE, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that in a proceeding brought by a parent to remove a non-parent as a guardian of the parent's minor child, the family court must consider the preference granted to parents in Hawai`i Revised Statutes (HRS) § 571-46(1) (1993) in determining whether under HRS § 560:5-212 (1993), it is in the best interest of the child to terminate the guardianship.

We conclude that although the family court of the first circuit (the family court) did not expressly refer to the parental preference, resolution of the evidence before it supported continuation of the guardianship over the child (Child) of Appellant-Mother (Mother) by Appellees-Grandparents (Grandparents).¹

Additionally, we hold that Mother failed to show a material change in circumstances in seeking a change in visitation rights, and that her request for a custody evaluation filed after a hearing on the issue of custody was moot.

Thus, we affirm the family court's March 31, 1999 order denying Mother's motion to terminate Grandparents' guardianship, and the April 9, 1999 order denying Mother's motion for unsupervised visitation and for a custody evaluation.

I.

Child was born on October 8, 1993, in Honolulu, Hawai`i. Grandparents began caring for Child when Child was about one year old. When Child was almost two years old, Mother gave Grandmother a one-year power of attorney for Child's medical needs.² In January 1996, Mother left Honolulu to attend an educational program on the mainland. During this time, Child continued to reside with Grandparents. Mother returned to Honolulu on three occasions in 1996. She represented that during one such visit, Grandparents agreed that "[i]f [Mother] signed over legal guardianship then they'll go ahead and pay for [Mother's] education."

On August 5, 1996, Grandparents filed a petition with the family court pursuant to HRS § 560:5-102 (1993) for guardianship of Child.³ The petition stated that "[s]uch guardianship is necessary because [Child] is presently living with [Grandparents], therefore, power and authority to consent to any procedures necessary for [Child's] health, welfare and best interests should be legally vested with [Grandparents]. The appointment will legally provide [Grandparents] with the full care, custody and control of [Child]."

On September 24, 1996, Grandparents' attorney filed an acknowledgment of service and consent to the petition signed by Mother. This document indicated that Mother had been informed of the hearing on Grandparents' guardianship petition, stated that she had "no objection to the appointment of [Grandparents] as legal co-guardians for [Child]," and included her notarized signature.

On October 2, 1996, the family court granted temporary letters of guardianship of the person to Grandmother "for the purpose of providing care and attention for [Child] and having custody thereof, and of performing all procedures necessary for [Child's] health, welfare and best interests pursuant to [HRS § 560:5-209 (1993).]"

On October 17, 1996, the family court granted Grandparents' petition and awarded them guardianship of Child (guardianship order).⁴ The guardianship order did not set forth any visitation rights for Mother. In pertinent part, it states:

4. [Child] is a minor as defined in [HRS § 560:5-101(2);

5. Appointment of co-guardians of the person of minor is in the best interests of the minor and is necessary in order to provide continuing care and supervision of said minor; and

6. [Grandparents] are fit and proper persons to serve as co-guardians.

NOW THEREFORE, IT IS HEREBY ORDERED THAT [GRANDPARENTS] be and is [sic] hereby appointed co-guardians for the person of the minor above named, for the purpose of providing care and attention for said minor and of performing all procedures necessary for the incapacitated person's health, welfare and best interests pursuant to [HRS §§ 560:5-312 and -312D.⁵

....

IT IS HEREBY FURTHER ORDERED that [Grandparents] shall ... be discharged upon the death of the minor, or upon the death, resignation, removal or determination of incapacity of the guardian or upon further order of the [family c]ourt....

That same day, letters of guardianship were issued to Grandparents, stating that they were appointed co-guardians of Child

for the purpose of providing care and attention for [Child] and having custody thereof, and of performing all procedures necessary for [Child's] health, welfare and best interests pursuant to [HRS § 560:5-209]. . . .

(Emphasis added.) The letters further stated that Child's parents were foreclosed from exercising the powers granted to Grandparents and Grandparents were subject to discharge upon certain conditions:

The parents of [Child] shall not exercise, without the consent of [Grandparents], the powers and duties which are hereby granted to [Grandparents] pursuant to [HRS § 560:5-209].

[Grandparents] ... shall be discharged... upon the further order of the [c]ourt....

In relevant part, HRS § 560:5-209 states that "[a] guardian of the person of a minor has the powers and responsibilities of a parent who has not been deprived of custody[.]"⁶

Mother returned to Honolulu in February 1997. According to a September 3, 1998 affidavit by Grandmother, Mother had moved into a rental home located next to their residence. We are unable to discern from the record whether Mother, her husband (Husband), and their child continue to live there.

On September 10, 1998, Grandparents moved for seeking appointment of a "CGAL" (GAL)⁷ on behalf of Child to investigate Mother's visitation with Child,⁸ supervised visitation with Mother only at the PACT⁹ Visitation Center, psychological evaluation of Mother, and the turnover of Child's passport to Grandparents. In an October 7, 1998 order, the family court denied Grandparents' motion without prejudice. However, the order allowed that the "motion may be orally revived" if Mother moved either for termination of guardianship or visitation rights.

On October 30, 1998, Mother filed a family court form entitled "Motion and Affidavit for Relief After Order or Decree, and Order to Show Cause for Relief After Order or Decree" (the termination motion). The pre-printed affidavit stated in part:

THE UNDERSIGNED AFFIANT MOVES for the relief set forth in the ORDER TO SHOW CAUSE which is attached. In [s]upport of this request the following statement is made:

(If existing orders re child custody and/or visitation are involved)

1. The best interests of the minor child of the parties require that [an] existing order regarding custody and/or visitation be modified as follows:

Mother completed the form as follows:

The [guardianship order f]iled on October 17, 1996 should be dissolved and custody of [Child] should revert to her [n]atural [m]other[.¹⁰]

Under the heading "RELIEF SOUGHT," the box next to the statement, "Why existing orders with respect to the custody of and/or visitation with the minor child should not be modified[,]" was marked. Neither the motion nor the affidavit cites to any statute.

On November 24, 1998, Grandparents filed a motion seeking again, inter alia, the appointment of a GAL to investigate proposed conditions of Mother's visitation.¹¹ The family court orally denied this motion at a November 25, 1998 hearing.¹² The family court's subsequent written order concerning the matters discussed at the November 25, 1998 hearing was filed on February 1, 1999, but did not refer to the family court's oral decision denying Grandparents' request for a GAL.

A hearing on Mother's termination motion was held on March 1, 1999. The family court denied this motion, and ordered that "the [c]o-[g]uardianship vested in [Grandparents] is hereby reconfirmed."

On March 18, 1999, Mother filed a motion for unsupervised visitations and for a custody evaluation (the visitation/custody motion).¹³ Mother's supporting affidavit stated, inter alia, that she had never harmed her children and was not a danger to them or to anyone else. The affidavit also related that she had been active in Child's life since Child's birth, and that "this [c]ourt must receive a fair and impartial evaluation of the positive relationship between [Child] and [Mother] and [Child's] half-sister and [s]tepdad" in order to be "allowed to have [Child] returned to [her] from [Grandparents]."

Grandparents filed a memorandum in opposition to the visitation motion, attaching their counsel's affidavit. In Grandparents' counsel's affidavit, he argued that the motion was a pre-trial motion and because the hearing had been conducted on March 1, 1998, the motion was untimely. Counsel also represented that Mother had opposed Grandparents' September 10, 1998 and November 24, 1998 motions for appointment of a GAL "to investigate and report on issues regarding [M]other's visitation and conditions of contact with [Child]," Mother had not contested the family court's denial of such motions, and Mother had not filed her own motion for appointment of a GAL.

On March 31, 1999, the family court issued an order denying the termination motion and reconfirming Grandparents' co-guardianship. On April 9, 1999, the family court filed an order denying Mother's visitation/custody motion. On April 29, 1999, Mother filed her appeal from the March 31, 1999 and the April 9, 1999 orders.

The case was temporarily remanded on January 4, 2000 for entry of findings of fact (findings) and conclusions of law (conclusions) in accordance with Hawai`i Family Court Rules (HFCR) Rule 52(a)<sup>14</sup> See State v. Gonsales, 91 Hawai`i 446, 449, 984 P.2d 1272, 1275 (App.) (per curiam),

aff'd., 92 Hawai`i 688, 994 P.2d 620 (19...