424 P.3d 483
Haw.2018Background
- W.N. (petitioner) lived with S.M. and helped raise S.M.'s adopted granddaughter (Child) from 2011–2013, then they separated and entered a 50/50 co‑parenting agreement that S.M. later revoked. W.N. filed for joint custody under HRS § 571‑46(a)(2) claiming de facto parent status.
- At the 2014 family‑court hearing, witnesses (supervisors, a treating psychologist Dr. Wyss, and a family counselor Dr. De Costa) gave conflicting testimony about W.N.'s parent‑child relationship, W.N.'s anger management, and Child’s regression; family court excluded certain evidence (visitation reports, therapy progress notes) and denied W.N.'s petition.
- This court’s 2016 decision (A.A. v. B.B.) vacated and remanded, rejecting the need for strict‑scrutiny review and instructing the family court to determine whether W.N. established the elements of HRS § 571‑46(a)(2) and, if so, decide custody in Child’s best interests.
- On remand the family court limited itself to the 2014 record, denied W.N.'s requests to admit additional evidence (including later foster‑licensing/psychosexual evaluation evidence), found W.N. failed the “fit and proper person” element, and denied custody in a 2017 order.
- W.N. appealed the 2017 order. The Hawai‘i Supreme Court vacated the order and remanded, holding the family court erred by refusing an evidentiary hearing on post‑2014 evidence relevant to present fitness and best interests; the court also provided guidance on hearsay and expert evidence issues for remand.
Issues
| Issue | W.N.'s Argument | S.M.'s Argument | Held |
|---|---|---|---|
| Whether the family court on remand had to hold a further evidentiary hearing | Remand required consideration of present fitness; post‑2014 evidence (foster license, psychosexual evaluation) is directly probative and must be allowed | Remand could be decided on the existing 2014 record; allowing new evidence gives W.N. a second bite | Court: Further hearing required — present fitness and best‑interests analysis requires current probative evidence; limiting to 2014 record was error |
| Whether fitness must be evaluated as of the time of the custody determination | Fitness is inherently present‑tense; courts must consider changed circumstances and new evidence bearing on present fitness | Fitness should be judged based on the prior hearing record to avoid re‑litigation | Court: Fitness must be assessed as of the time of determination; new, relevant evidence may be considered |
| Admissibility of supervised‑visit visitation reports (hearsay) | Reports are admissible because Child’s quoted utterances were not offered for truth but to show interactions; redaction/excited‑utterance arguments possible | Reports contain hearsay statements of Child and were properly excluded | Court: Visitor reports contain non‑hearsay material (showing interaction) and are relevant; trial court should reexamine hearsay rulings and consider redaction or admission on remand |
| Exclusion/limitation of Dr. Wyss’s testimony and progress notes | Progress notes and broader testimony were probative on anger management, sexual‑allegation rebuttal, and fitness; exclusion on remand improperly prevented relevant proof | Exclusions were justified as cumulative or outside original scope; prior appellate ruling found any error harmless | Court: Family court should reassess whether progress notes are cumulative; if probative and not cumulative/unfairly prejudicial, they (and related testimony/letter) should be admitted on remand |
Key Cases Cited
- A.A. v. B.B., 139 Hawai‘i 102, 384 P.3d 878 (Haw. 2016) (prior appellate resolution of constitutional/statutory issues and remand instructions)
- Doe v. Doe, 98 Hawai‘i 144, 44 P.3d 1085 (Haw. 2002) (denial of re‑hearing excluded testimony relevant to family violence and best interests)
- Tumaneng v. Tumaneng, 138 Hawai‘i 468, 382 P.3d 280 (Haw. 2016) (evidence of past abuse relevant to best‑interests analysis regardless of timing)
- Kauai Springs, Inc. v. Planning Comm’n of Cty. of Kaua‘i, 133 Hawai‘i 141, 324 P.3d 951 (Haw. 2014) (statutory interpretation principles)
- Waldecker v. O’Scanlon, 137 Hawai‘i 460, 375 P.3d 239 (Haw. 2016) (standards of appellate review for family‑court findings)