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NO. CAAP-23-0000043

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF M.C., S.C., T.B., AND B.B.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(CASE NO. FC-S No. 21-00237)

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

This appeal by L.B. arises from a Hawai#i Department of

Human Services (DHS) petition for temporary foster custody over

M.C., S.C., T.B., and B.B. (the Minors). The Family Court of the

First Circuit held a contested return hearing on January 11,

2023.1 L.B. did not attend, but his attorney did. The Family

Court defaulted L.B., took jurisdiction over him, and adjudicated

the petition. The court entered an Order[] Concerning Child

Protective Act on January 17, 2023. The Minors' foster custody

was continued. L.B. was ordered to follow DHS's service plan. 

The Family Court entered findings of fact and conclusions of law

on March 9, 2023. L.B. appeals. We affirm.

[T]he family court possesses wide discretion in making its

decisions and those decision[s] will not be set aside unless

there is a manifest abuse of discretion. Thus, we will not

disturb the family court's decisions on appeal unless the

family court disregarded rules or principles of law or

1 The Honorable Natasha R. Shaw presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-23-0000043

25-JAN-2024

08:19 AM

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practice to the substantial detriment of a party litigant

and its decision clearly exceeded the bounds of reason.

Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)

(citation omitted). A family court's denial of a request to

continue a proceeding is reviewed for abuse of discretion. 

Weinberg v. Dickson-Weinberg, 123 Hawai#i 68, 71, 229 P.3d 1133,

1136 (2010). A family court's findings of fact are reviewed

under the clearly erroneous standard. Fisher, 111 Hawai#i at 46,

137 P.3d at 360. Conclusions of law are ordinarily reviewed de

novo, under the right/wrong standard. Id. However, when a

conclusion of law presents mixed questions of fact and law, we

review it under the clearly erroneous standard because the

court's conclusions depend on the facts and circumstances of each

individual case. Est. of Klink ex rel. Klink v. State, 113

Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A conclusion of law

supported by the trial court's findings of fact and reflecting an

application of the correct rule of law will not be overturned. 

Id.

DHS filed the petition for temporary foster custody on

December 22, 2021. The initial hearing was held on December 27,

2021. L.B. contested the petition and asked for a trial. Trial

was set for February 7, 2022. It was continued to February 11,

2022, then to May 31, 2022. The Family Court turned the May 31,

2022 trial date into a pretrial hearing because a new guardian ad

litem had to be appointed and L.B.'s attorney was contemplating

withdrawal.

At the May 31, 2022 hearing, L.B.'s attorney informed

the Family Court that he would continue to represent L.B. The

Family Court rescheduled the pretrial hearing to October 3, 2022,

and the trial to October 17, 2022.

At an October 3, 2022 pretrial hearing, L.B.'s attorney

orally moved to withdraw. The Family Court granted the motion

and set aside the trial date to allow L.B. to obtain new counsel. 

Trial was rescheduled to December 12, 2022. Substitute counsel

was appointed on November 30, 2022.

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An unsuccessful mediation was held on December 5, 2022. 

L.B. orally moved to continue the trial. The Family Court denied

the motion. On December 8, 2022, L.B. moved to continue the

trial or to discharge his attorney. The Family Court continued

the trial to January 11, 2023, but informed L.B.:

And [L.B.], if you decide that you don't like [your

attorney], or whatever it may be, and you decide you don't

want him to be your attorney, it doesn't matter if you have

a different attorney, we are going to trial on January,

okay? Whatever reason that you come up with in January, you

know, we're going to proceed, understand?

[L.B.]: All right.

The Family Court's written order stated:

[L.B.] shall be prepared to proceed to trial on [January 11,

2023] regardless of his counsel situation, including if he

discharges his current counsel or obtains new counsel. 

[L.B.] shall be prepared to proceed pro se if he does not

have an attorney at trial. THERE SHALL BE NO FURTHER

CONTINUANCES BASED ON [L.B.]'s retention or lack thereof, of

COUNSEL.

L.B. didn't appear on January 11, 2023. The Family

Court waited over an hour for him. The court then recited the

case's procedural history and stated:

And this morning [L.B.'s attorney] provided the Court

with two copies of two documents that [he] received from his

client. One of the documents is titled Hawaii Emergency

Physicians Associated, Inc. It's a medical certificate from

Honolulu County Medical Society. It says, Court will read

it: This is to certify that [L.B.] has been under my

professional care and in my opinion was incapacitated from

performing his/her usual duties from October 10th, 2023

through -- I'm sorry -- January 10th, 2023 through

January 12th, 2023, and the date is January 10th, 2023. And

it was signed by someone. The signature is not legible and

there is a MD that was scratched out and an RN written above

it.

There's also a looks like doctor's note regarding

[L.B.], and that he visited the doctor at Adven -- Adventist

Health Castle on January 10th, 2023. He was discharged with

viral syndrome, that the instruction -- follow-up

instructions were that he were to follow up with his primary

care provider within one to two days, and these two days

happen to fall on the two days of this trial.

The Court attempted to contact [L.B.], however there

was no response by [L.B.]. The Court informed [L.B.'s

attorney] that his client can appear by Zoom for the trial,

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however [counsel], based on the two letters provided, said

that his client was incapacitated, could not attend the

hearing.

The Family Court asked the parties for their positions. 

The Minors' guardian ad litem objected to L.B.'s failure to

appear. DHS stated it was "very suspicious of this report . . .

given the history of this case" but took no position on whether

to default L.B. L.B.'s attorney stated:

Well, Your Honor, if my client is sick, that should be

reason to excuse him from this trial today. You know, the

Court could, in terms of his default, take it under

advisement, set another trial date. If the DAGs or someone

else can verify that these documents are not correct, that

he's out playing golf today, then the Court can default him

nunc pro tunc.

But I have no reason to believe he is lying in these

documents, Your Honor. I -- you know, because of the number

of continuances, I guess the Court is correct to be wary

about whether or not he, in fact, is incapacitated, but

without contrary evidence, I believe the Court should

continue this matter and set another trial date.

The guardian ad litem asked the Family Court "to do

an evaluation to check [L.B.'s] capacity, if that is really the

reason why he is unable to attend. Otherwise, I cannot agree

that he can't attend based on incapacitation." The Family Court

ruled:

Okay. Based on the totality of what has transpired as

to the continuances, and that it's been over one year, and

that [L.B.] had notice of the trial date, the Court finds

that these two documents are not good cause to continue the

contested adjudication trial. The Court's going to find

that [L.B.] has inexcusably and willfully failed to appear

at trial, and the Court will default [L.B.], adjudicate the

petition as to [L.B.], take jurisdiction as to [L.B.].

And then, [L.B.'s attorney], if there's something more

than just these documents that -- you know, you can file an

appropriate motion later and the Court can (inaudible) as

well. But for -- the Court's going to default him today and

take -- take jurisdiction.

The record does not reflect that L.B. moved for reconsideration

or to set aside his default.

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The January 17, 2023 Order stated:

Regarding [L.B.]'s non-appearance, [L.B.'s attorney]

informed the Court that [L.B.] is ill and requested a

continuance of [L.B.]'s scheduled adjudication trial. In

support, [counsel] submitted a "Medical Certificate" from

"Hawaii Emergency Physicians Associated, Inc." and a note

from "Adventist Health Castle" regarding [L.B.], which the

Court reviewed. The Court attempted to call [L.B.] multiple

times but was not able to reach him. GAL objected to

[L.B.]'s non-appearance and request for a continuance, while

DHS, Mother, and [counsel for another party] took no

position. After due consideration, including the Court

taking note of [counsel]'s submissions as well as the

history of continuances and prior orders in this case, the

Court, over [counsel]'s objections, does not find good cause

to excuse [L.B.]'s non-appearance or to grant [counsel]'s

request for another continuance. Moreover, over [counsel]'s

objections, the Court finds that [L.B.] inexcusably and

willfully failed to appear for his adjudication trial and is

in default.

Foster custody for Minors was continued. The DHS Family Service

Plan dated December 22, 2021 was ordered as to L.B. The service

plan required that L.B. have a psychosexual evaluation; complete

sexual offender therapy; participate in #Ohana conferencing;

participate in an alcohol and drug assessment and participate in

any recommendations; and cooperate with DHS's social worker and

providers.

This appeal followed.

L.B. challenges the Family Court's findings and

conclusions about the medical certificate from Hawaii Emergency

Physicians Associated and the note from Adventist Health Castle. 

L.B. relied on those documents to show good cause for his failure

to appear at trial, but neither document appears in the record on

appeal. L.B. has "the burden of furnishing the appellate court

with a sufficient record to positively show the alleged error. 

An appellant must include in the record all of the evidence on

which the lower court might have based its findings and if this

is not done, the lower court must be affirmed." Union Bldg.

Materials Corp. v. Kakaako Corp., 5 Haw. App. 146, 151–52, 682

P.2d 82, 87 (1984) (citations omitted).

Under those circumstances, including the Family Court

offering to let L.B. appear by Zoom, trying to contact him

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multiple times after his non-appearance, inviting counsel to move

to set aside L.B.'s default, and L.B.'s failure to then submit

"other relevant and credible evidence as to why [he] inexcusably

failed to appear[,]" we cannot say that the Family Court abused

its discretion by denying a continuance of the trial, taking

jurisdiction over L.B. under HRS §§ 571-11(9) (2018 & Supp. 2020) 

and 587A-5 (2018), and defaulting him.

L.B. also challenges conclusion of law no. 57, which is

actually a mixed finding and conclusion. The Family Court found

and concluded that "the reports submitted pursuant to HRS

§[§] 587A-7 [safe family home factors] and 587A-18 [reports to be

submitted by DHS and authorized agencies] and other evidence and

the record" were enough "to sustain the Petition as to [L.B.]"

because the Minors "are children whose physical or psychological

health or welfare has been harmed or is subject to threatened

harm by the acts or omissions of" L.B. The Family Court's

finding was supported by substantial evidence in the record,

including reports of L.B.'s alleged sexual abuse of M.C. and

others. The Family Court's conclusion reflects an application of

the correct rule of law. Est. of Klink, 113 Hawai#i at 351, 152

P.2d at 523.

For these reasons, we affirm the Family Court's "Orders 

Concerning Child Protective Act" entered on January 17, 2023.

DATED: Honolulu, Hawai#i, January 25, 2024.

On the briefs:

/s/ Katherine G. Leonard

Herbert Y. Hamada, Acting Chief Judge

for Respondent-Appellant L.B.

/s/ Keith K. Hiraoka

Philip Dureza, Associate Judge

Julio Cesar Herrera,

Deputy Attorneys General, /s/ Sonja M.P. McCullen

State of Hawai#i, Associate Judge

for Petitioner-Appellee

Department of Human Services.

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