NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-20-0000062

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE GUARDIANSHIP

OF LN AND BN

(FC-G NO. 17-1-0006)

AND

IN THE MATTER OF THE CUSTODY

OF LN AND BN

(FC-M NO. 19-1-0163)

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT

MEMORANDUM OPINION

(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

Petitioner-Appellant MK (Guardian) appeals from the

January 10, 2020 Order Denying [Guardian]'s Motion to Reconsider

Order Denying Her Petition for Custody and Order Granting Motion

for Summary Judgment (Order Denying Reconsideration) entered by

the Family Court of the Second Circuit (Family Court) in both FCG No. 17-1-0006 (Guardianship Case) and FC-M No. 19-1-0163

(Custody Case).1 Guardian also challenges the Family Court's

Summary Judgment Order and the Order Terminating Guardianship, as

well as the Order Denying Custody. 

1 The Honorable Adrianne N. Heely (Judge Heely) presided over the

final proceedings which also resulted in the December 6, 2019 Order Granting

Motion for Summary Judgment Filed October 8, 2019 (Summary Judgment Order) and

the December 13, 2019 Order Granting Father['s] Motion to Terminate

Guardianship of Minors (Order Terminating Guardianship) in the Guardianship

Case, and the December 13, 2019 Order Denying Petition for Custody ( Order

Denying Custody) in the Custody Case; however, the Honorable Lloyd A. Poelman

(Judge Poelman) presided over earlier proceedings stemming from a motion to

terminate guardianship in the Guardianship Case. 

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000062

05-DEC-2022

10:00 AM

Dkt. 61 MO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

I. BACKGROUND

A. The Petition for Guardianship

Respondent-Appellee Father (Father) and RespondentAppellee Mother (Mother) are the biological and legal parents of

two children (Children), born in 2007 and 2012. Guardian is the

Children's former maternal great aunt; she was related to the

Children by her (former) marriage to Mother's uncle.

On February 15, 2017, during a period of marital strife

between Mother and Father (who since divorced), Guardian filed

pro se a Petition for Appointment of a Guardian of the Persons of

Minors (Petition for Guardianship), in FC-G No. 17-1-0006,

requesting that she be appointed guardian of the Children on the

grounds that such appointment was necessary for the Children's

schooling, medical care, and "proper life support." Guardian

prepared one-page "Waiver of Notice and Consent to Guardianship"

papers (Waiver and Consent) for Father and Mother to sign. 

Father did not check a box stating that he did not want notice of

further hearings, but the Waiver and Consent stated that Father

did not require that he be given 14 days notice; Father's Waiver

and Consent is signed. Mother's name is printed on her Waiver

and Consent; a box is checked next to a statement saying, "I do

not want to be notified of any further hearings and understand

that the Court may grant the Petition without further notice to

me." Neither Father nor Mother were represented by counsel with

respect to the Petition for Guardianship.

On April 3, 2017, a hearing was held on the Petition

for Guardianship.2 Guardian and Father appeared at the hearing;

Mother did not. The parties were placed under oath. The Family

Court first addressed Guardian and noted that there was no proof

of service or return of service filed with the Court. Guardian

stated they were served by her niece and asked if she could

"write" the submission showing service. The Court told her no,

the person who served the petition and notice of hearing should

do it. No proof of service for the Petition for Guardianship

2 Judge Poelman presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and/or the notice of hearing on the petition was ever filed.3 

The Family Court then spoke with Father:

THE COURT: . . . There's a waiver of notice and

consent to guardianship in the file that says that you

received a copy of the petition requesting the appointment

of [Guardian] as guardian of [the Children] and that you got

notice of today's hearing; that you consent to the

guardianship to her appointment as the guardian and waive

the requirement that you receive any further notices of any

hearings. Is that correct?

[Father]: Yes.

THE COURT: And this document says that same thing. 

Is this your signature on the document?

[Father]: Yes.

THE COURT: And today you have been sworn to tell the

truth. Do you still consent to this guardianship?

[Father]: Yes.

THE COURT: And you are the natural father?

[Father]: Yes.

THE COURT: Okay. Thank you. You're welcome to stay

or you can be excused if you'd like, but you can stay. I

don't care. 

The Family Court did not further address Father at the

hearing. The Court noted that it had the consent of the mother

and Mother's name. Although Mother's name is hand-printed on the

waiver of notice and consent form, which does not appear to bear

any signature, Mother does not deny that she initially consented

to the guardianship. The Court asked Guardian where she lived,

with whom, and how long the Children had been living with her, as

well as about her employment status. The Court asked Guardian

whether she was providing the Children "with their household

care, shelter, food, and taking on those responsibilities?" She

said, "Yes. The parents give as they can." The Court asked

further questions about the Guardian's taking on the financial,

educational, and health care needs of the Children. She informed

3 Neither Mother nor Father raised a direct challenge on any grounds

to the initial April 3, 2017, Order Appointing Guardian of the Minor Persons

(Order Appointing Guardian). They later explained that they consented to the

guardianship because they viewed it as, essentially, a means to help them and

the Children through a difficult period and they never understood or intended

that it could affect their custody of the Children or prevent them from

reuniting with the Children.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Court they have insurance through Medicaid. The Court asked

Guardian whether she believed the guardianship was in the best

interest of the Children and asked if she understood and accepted

her duties and responsibilities. She answered affirmatively. 

Finally, the following exchange occurred:

THE COURT: Based upon the records of the case and the

testimony and evidence presented, the Court finds it has

jurisdiction in this matter and that all statutory

requirements have been met. The material allegations of the

petition for appointment of guardian have been proven and

all necessary consents have been obtained or notice

requirements have been filed.

Would you just briefly on the record state why it is

that there is the need for the guardianship. Are the

parents unable to take care of the children or what is the

reason for the guardianship?

[Guardian]: They are separated. The mother lives in

Lahaina and the father works. So it's hard for me to sign

educational papers for school. I need it to take them to

the doctor.

THE COURT: And they're living with you?

[Guardian]: Yes.

THE COURT: And why is it that they live with you and

not the parents?

[Guardian]: Because the mother -- the kids go to

school at -- the little girl goes to [particular school] and

the boy goes to [other school], but the mother lives in

Lahaina and dad works early in the morning.

THE COURT: And they don't live with the father or do

they?

[Guardian]: They visit on weekends.

THE COURT: They visit the father on weekends?

[Guardian]: Yes, and sometimes mom.

THE COURT: Okay. The Court finds that the subject

children are in need of -- and circumstances require a

guardian be appointed. The Court finds that the petitioner

is a fit and proper person who can provide proper care and

supervision, granting of the petition for guardianship will

serve the welfare and best interest of the subject children.

Therefore, the petition is granted. The petitioner is

appointed as guardian of the subject minor children to serve

without compensation and without bond. The guardianship

will remain in effect until the attainment of majority of

the subject minor children or further order of the Court.

(Emphasis added.)

The Order Appointing Guardian was entered, and

corresponding Letters of Guardianship of Minor Children were

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

issued the same day. It does not appear that Father or Mother

were ever served with these documents, and they did not approve

them as to form. 

B. The Subsequent Proceedings

On August 14, 2019, Father filed Father['s] Motion to

Terminate Guardianship of Minors (Motion to Terminate) in the

Guardianship Case. In the Motion to Terminate, Father argued,

inter alia, that the Family Court should terminate the

guardianship because it would be in the Children's best interest

to return to the custody and care of their father, that Father

had never been determined to be unfit or unable to provide a safe

and wholesome home for the Children, and that the court must

consider the preference granted to parents. Father explained, in

his memorandum in support as well as his sworn declaration, that

he consented to the guardianship because he and Mother were in

the midst of a separation and contemplating divorce. Mother had

moved to another part of the island and was unable to assist in

taking the Children to school and appointments, and Guardian was

willing to assist. The guardianship was presented to him by

Guardian as a way to make it easier for Guardian to take the

Children to school and healthcare appointments during his work

days. He attested that, during the guardianship, he maintained

contact with the Children and had parenting time on the weekends,

as well as at other times. He provided financial support and

spent holidays with the Children. 

However, Guardian terminated contact between Father and

the Children when, in 2019, he informed her that the divorce was

nearly final and he wanted the Children to return to his custody

and control. Father attested that his relationship with Mother

had improved since they were officially divorced and she moved

back upcountry. When Guardian was unreceptive to his request for

the Children's return, Father told Guardian that he never thought

he would be unable to have his children returned to him. In

response to his attempts to discuss the return of the Children,

Guardian said he was giving her attitude, not being respectful,

and later, that they could talk when he could talk to her without

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

being angry (he denied being angry). His last visit with the

Children was on Father's Day, two months prior to filing the

motion. He expressed appreciation for all that Guardian had

done, but pointed to his ability to care for the Children and

requested termination of the guardianship.

On August 29, 2019, Guardian filed a request to

continue to act as the Children's guardian, responding to and

contesting nearly all of the averments made in the Motion to

Terminate (Opposition to Termination). As it specifically

concerned whether it would be in the Children's best interest to

return to Father's custody, Guardian alleged, inter alia, that

Father was unstable, required a Breathalyzer device to drive, and

lived with his girlfriend who was legally married and has three

children of her own that rotate between families. Guardian

raised these concerns to dispute Father's contention that he had

not been found unfit nor his home found unstable or unwholesome

in the original appointment proceedings. 

At a September 3, 2019 hearing on the Motion to

Terminate, Father and Guardian appeared with counsel and Mother

appeared pro se, stating that she supported Father's attempt to

terminate the guardianship. The Family Court stated that it

appeared to be a contested case that should be set for trial. 

Guardian requested, and the parents ultimately agreed to, the

Court's appointment of Davelynn Tengan (Tengan or Fact Finder) as

a neutral "fact finder" to give the court factual information in

the form of a report after reading the filings, contacting the

parties, including Mother, and meeting with the Children. The

parties discussed whether the Family Court could order de facto

parenting time for Guardian in the event the Motion to Terminate

was granted, and the court invited Guardian to file a motion for

visitation.4 

On September 17, 2019, the Family Court held a hearing

regarding setting an interim parenting schedule and establishing

that the Fact Finder's report was to evaluate whether there were

4 Guardian never filed a motion for visitation, and instead

petitioned for sole legal and joint physical custody initiating the Custody

Case. Her appeal makes no argument concerning visitation. We therefore do

not address the issue further. 

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

any credible allegations that either parent was currently unfit

or unable to provide a stable and wholesome home. Appearing

through counsel, Mother orally moved to terminate the

guardianship and for summary judgment, arguing that the parents

were fit parents and that they could not afford further legal

proceedings. The motions were denied without prejudice to the

filing of a dispositive motion. 

On September 24, 2019, Father filed a Memorandum of Law

for the Fact Finder, reiterating the factual assertions and

arguments made in the Motion to Terminate. 

On September 25, 2019, Mother filed her memorandum in

support of the Motion to Terminate. Citing Troxel v. Granville,

530 U.S. 57 (2000), Mother argued, inter alia, that "parents have

[an] absolute constitutional right to terminate the

guardianship." Mother claimed that, in the absence of a finding

that parents are unfit, the Family Court was required to grant

the Motion to Terminate. 

On October 8, 2019, Mother filed her motion for summary

judgment to terminate guardianship (Motion for Summary Judgment),

which Father joined, echoing the arguments stated in her

memorandum in support of the Motion to Terminate and urging the

Family Court to immediately and summarily return the Children to

their parents. 

On October 8, 2019, Guardian initiated the Custody Case

with the filing of a Petition for Custody. Therein, Guardian

alleged that — in addition to being the legally-appointed

guardian of the Children since April 3, 2017 — Guardian had de

facto custody of the Children from 2012 and 2016, respectively.5

Guardian claimed, inter alia, that the younger child had been in

Guardian's care "every weekend and eventually during the

weekdays" since April of 2012, when the younger child was an

infant, and that Guardian began to care for the older child in

June of 2016. Guardian also alleged that she "provided both

5 In her opening brief, Guardian states that the Children had been

living with her for "approximately six months" leading up to her appointment

on April 3, 2017. At the April 3, 2017 hearing on the Petition for

Guardianship, Guardian stated under oath that the Children had been living

with her since September, meaning September of 2016.

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

minor children with a stable and wholesome home" and that she "is

a fit and proper person to have care, custody, and control of the

minor children."

On October 22, 2019, Tengan filed a Report of the Fact

Finder (Factfinder Report) in the Guardianship Case. The

Factfinder Report stated the charge to Tengan, as the Fact

Finder, and detailed interviews with the Children, both parents,

and Guardian. As a result of her factfinding, Tengan reported

that there were not credible allegations that either Mother or

Father were presently unfit to parent or unable to provide a

stable, wholesome home for the Children. Through discussion with

Guardian and Guardian's niece, Tengan identified the allegations

that might bear upon Mother and Father's fitness. Tengan

reported that several of the allegations were too remote in time

to weigh upon the parents' current fitness. Although the

Factfinder Report noted potential concerns regarding Father's

alcoholism and fighting between Father and Father's girlfriend,

who lives with Father, Tengan found that any concerns were

outweighed by "other positive parenting and personal

characteristics" identified in the interviews. The Factfinder

Report also stated that the Children's preference was to live

with their parents and that the Children supported Father's

assertion that he had stopped drinking. 

On October 23, 2019, in the Custody Case, Father filed

an opposition to the Petition for Custody. Father argued that

Guardian was not a de facto parent, but rather that she had been

a babysitter and then a legal guardian. Accordingly, Guardian's

role was not that of a de facto parent like in the cases cited by

Guardian. On October 23, 2019, Father also filed Father's Answer

to Petition for Custody, responding to Guardian's allegations. 

On October 24, 2019, in the Guardianship Case, Guardian

filed a memorandum in opposition to the Motion for Summary

Judgment, disputing Father and Mother's contention that there was

an absolute right to revoke a consensual guardianship where the

parents were not deemed unfit or unable to provide a stable or

wholesome home. Guardian asserted that the Family Court was

obligated to determine the matter based on the best interest of

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Children and, to that end, maintained that there was a

genuine issue of material fact as to whether termination of the

guardianship was in the Children's best interest. Guardian also

asserted that, on the basis of her de facto custodianship, there

was prima facie evidence that awarding custody to Guardian was in

the children's best interest. 

On October 29, 2019, a hearing was held on the

Factfinder Report, the Motion for Summary Judgment, and the

Petition for Custody. The Family Court acknowledged its receipt

of the Factfinder Report and confirmed with Tengan her finding

that neither parent is unfit or unable to provide a stable or

wholesome home. After lengthy arguments, and a Hawai#i Family

Court Rules (HFCR) Rule 56(f) request by Guardian to be allowed

to file a declaration addressing the Motion for Summary Judgment 

and the Factfinder Report, the Family Court declined to rule at

that time on the parents' fitness and the legal arguments

presented by the parties. The Family Court invited the parties

to file declarations opposing or supporting fitness and continued

the hearing on the Motion for Summary Judgment. At a further

hearing the next day, which was intended to address interim

custody of the Children, the Family Court noted:

The Court does not agree with the initial portion of

the motion for summary judgment that says that the parents

can create a guardianship and terminate the guardianship if

there's a question of fact whether they are fit parents, and

that is and if there is a question of fact. If there's no

question of fact there and if the parents are fit and proper

and stable, then I agree with their position that they have

an absolute right to terminate the guardianship and take

custody again of the children, but if there is a question of

fact as to whether they are fit and stable, then that issue

would need to be tried.

So the Court under [HFCR] Rule 56(f) set deadlines

yesterday for filings of declarations and affidavits in

regard to whether there is a question of fact as to whether

or not the parents are fit or not, and the Court said

yesterday it will take the fact finder's findings into

consideration as part of that motion for summary judgment.

Now, I did review the fact finder's findings, and the

fact finder's opinion was that these parents are fit. 

That's still disputed by the guardian at this point in time. 

We still are in the middle of this motion for summary

judgment question.

(Emphasis added).

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The court went on to state that "while there's a

question of fact being alleged regarding the fitness of the

parents, the fact finder's findings didn't support that." 

On November 5, 2019, Father submitted a declaration

supporting the Fact Finder's finding that he was fit, proper, and

able to provide a wholesome home; asserting that all of

Guardian's allegations regarding his fitness were well behind

him; and categorically denying the new allegations as hearsay and

falsehoods. Father's mother, girlfriend, and sister, and

employer also submitted declarations supporting Father's fitness

to regain custody of the Children. 

Also on November 5, 2019, Guardian submitted her

declaration in opposition to the Motion for Summary Judgment,

making a series of allegations regarding, inter alia, the

conditions leading to the creation of the guardianship, Father's

history of drinking and driving, the Children's concerns about

Father's relationship with his girlfriend, and other concerns

about whether it was in the Children's best interest to be

returned to their parents.6 

On November 7, 2019, Mother submitted affidavits from

Jenna Yap, Executive Director of the Keiki Aloha & Miss Hawaii

America Preliminary Scholarship Competition; Mother's mother; and

a friend of the family attesting to, inter alia, Mother's

character and fitness. 

On November 12, 2019, in the Custody Case, Guardian

filed a reply memorandum to Father's opposition to the Petition

for Custody, arguing that she had asserted a prima facie case of

de facto parenting and distinguishing the case law cited by the

parents. 

A hearing was held on November 19, 2019, during which

the Family Court heard arguments regarding the Motion for Summary

Judgment, Motion to Terminate, and Petition for Custody. The

court reconvened on November 27, 2019 to issue its rulings on the

Motion for Summary Judgment, Motion to Terminate, and Petition

for Custody. At the further hearing, the court recounted in

6 The declaration also contains averments pertaining to the

Children's activities and well-being while under Guardian's care. 

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

detail its review of the history of both the Guardianship and

Custody Cases. The court reviewed the creation of guardianship;

reviewed the authority of Fact Finder and the Factfinder Report,

cataloged the various motions and memoranda filed by the parties

and the rulings made by the prior judge, and ultimately granted

the Motion for Summary Judgment and Motion to Terminate, finding

no genuine issue of material fact that "parents are ready and

able to provide a safe, proper home for their children." The

court then stated its determinations regarding the Petition for

Custody and denied the petition on the grounds that Guardian was

not a de facto parent, acknowledging the preference it accorded

to the parents in granting termination of the guardianship. 

On December 6, 2019, the Family Court entered the

Summary Judgment Order. On December 13, 2019, the Family Court

entered the Order Terminating Guardianship and Order Denying

Custody. On December 23, 2019, Guardian filed a motion to

reconsider the Order Denying Custody and the Summary Judgment

Order (Motion for Reconsideration) in the Guardianship and

Custody Cases. Mother and Father both opposed the motion, and on

January 10, 2020, the Family Court entered the Order Denying

Reconsideration. 

On February 7, 2020, Guardian timely filed a notice of

appeal.

II. POINTS OF ERROR

Guardian raises three points of error on appeal,

contending that the Family Court erred in: (1) granting the

Motion for Summary Judgment and the Motion to Terminate;7 (2)

dismissing the Petition for Custody for failure to state a claim

7 Guardian's points of error do not comply with the requirements of

Hawai#i Rules of Appellate Procedure Rule 28(b)(4), including but not limited

to the failure to specifically identify the alleged error(s) and where in the

record they occurred. For example, the first point of error states "The

Family Court erred when it granted Parent's MOTION FOR SUMMARY JUDGMENT TO

TERMINATE GUARDIANSHIP in the guardianship case" with no indication of where

in the record the alleged error occurred or where it was objected to. 

Although the imprecise wording used seems to challenge only the Summary

Judgment Order, and not the Order Terminating Guardianship, in the interest of

reaching the merits, to the extent that it is possible and makes sense to do

so, we will attempt to construe the related arguments in the "Argument"

section of the opening brief as applicable to both orders.

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

upon which relief could be granted; and (3) denying

reconsideration. 

III. APPLICABLE STANDARDS OF REVIEW

Generally, the family court possesses wide discretion

in making its decisions and those decisions will not be set

aside unless there is a manifest abuse of discretion. Thus,

we will not disturb the family court's decision on appeal

unless the family court disregarded rules or principles of

law or practice to the substantial detriment of a party

litigant and its decision clearly exceeded the bounds of

reason.

Hamilton v. Hamilton, 138 Hawai#i 185, 197, 378 P.3d 901, 913

(2016) (quoting Kakinami v. Kakinami, 127 Hawai#i 126, 136, 276

P.3d 695, 705 (2012)). Likewise, we review the denial of a

motion for reconsideration for abuse of discretion. See Doe v.

Doe, 98 Hawai#i 144, 150, 44 P.3d 1085, 1091 (2002).

We review an award of summary judgment de novo under

the same standard applied by the Family Court. See Blaisdell v.

Dep't of Pub. Safety, 119 Hawai#i 275, 282, 196 P.3d 277, 284

(2008).

Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. A

fact is material if proof of that fact would have the effect

of establishing or refuting one of the essential elements of

a cause of action or defense asserted by the parties. The

evidence must be viewed in the light most favorable to the

non-moving party. In other words, we must view all of the

evidence and the inferences drawn therefrom in the light

most favorable to the party opposing the motion.

Omerod v. Heirs of Kaheananui, 116 Hawai#i 239, 254-55, 172 P.3d

983, 998-99 (2007) (brackets omitted) (quoting Taniguchi v. Ass'n

of Apartment Owners of King Manor, Inc., 114 Hawai#i 37, 46, 155

P. 3d 1138, 1147 (2007)).

IV. DISCUSSION

There are three decisions at issue on appeal, the

Family Court's granting of summary judgment and termination of

the guardianship in the Guardianship Case, and the Family Court's

denial of the Petition for Custody, in which Guardian sought sole

legal and joint physical custody of the Children, in the Custody

Case. 

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

A. The Summary Judgment Order and the Order Terminating

Guardianship

The Petition for Guardianship identified the Children

and their parents, and stated only that Guardian's appointment

was necessary because "the children need to be enrolled in

school, need medical care, and need proper life support." The

petition did not allege that the Children were abused or

neglected in any way; nor did it allege that the parents were

unfit or unable to care for the Children. The petition sought

appointment of Guardian pursuant to Hawaii Revised Statutes (HRS)

§ 560:5-204 (2018),8 which provides in relevant part:

§ 560:5-204 Judicial appointment of guardian;

conditions for appointment. (a) A minor or a person

interested in the welfare of a minor may petition for

appointment of a guardian.

(b) The court may appoint a guardian for a minor if

the court finds the appointment is in the minor's best

interest, and:

(1) The parents consent;

(2) All parental rights have been terminated; or

(3) The parents are unwilling or unable to exercise

their parental rights.

HRS § 560:5-206 (2018) provides in relevant part:

§ 560:5-206 Judicial appointment of guardian;

priority of minor's nominee; limited guardianship. (a) The

court shall appoint as guardian a person whose appointment

will be in the best interest of the minor. The court shall

appoint a person nominated by the minor, if the minor has

attained fourteen years of age, unless the court finds the

appointment will be contrary to the best interest of the

minor.

(Emphasis added).

At the April 3, 2017 hearing on the Petition for

Guardianship, after putting Guardian under oath, the Family Court

asked her whether the parents were unable to take care of the

children or what was the reason for the guardianship. Guardian

did not say that the parents were unable or unfit to care for the

8 Contrary to certain arguments made by Guardian after Father and

Mother sought to terminate the guardianship, this guardianship was not

initiated pursuant to HRS § 560:5-202 (2018), which permits parental

appointment of a guardian effective upon the appointing parent's death or

adjudicated incapacitation, or a physician's determination that the parent is

no longer able to care for the child.

13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Children, but instead responded that the parents were separated

and the father worked, and she (Guardian) needed it (the

guardianship) to sign educational papers for school and to take

the Children to the doctor. Again, there was no assertion that

the parents were neglectful or abusive or that they were

relinquishing custody to Guardian, who was the Children's longtime babysitter, as well as an extended family member (through an

ex-spouse). The court asked why the Children lived with her, not

the parents, and she explained that the Mother lived in Lahaina,

the Children both go to schools in upcountry Maui - near where

both Guardian and Father live - and "dad" works early in the

morning. When asked, Guardian said that the Children visit

Father, and sometimes Mother on the weekends. With that, the

Family Court granted the Petition for Guardianship and entered

the form of order submitted by Guardian (which was not approved

as to form by Mother and Father), as well as the Letters of

Guardianship submitted by Guardian.

Roughly two years later, Father sought to terminate the

guardianship pursuant to HRS § 560:5-210 (2018), which provides:

§ 560:5-210 Termination of guardianship; other

proceedings after appointment. (a) A guardianship of a

minor terminates upon the minor's death, adoption,

emancipation or attainment of majority, or as ordered by the

court.

(b) A ward or a person interested in the welfare of

a ward may petition for any order that is in the best

interest of the ward. The petitioner shall give notice of

the hearing on the petition to the ward, if the ward has

attained fourteen years of age and is not the petitioner,

the guardian, and any other person as ordered by the court.

In the Motion to Terminate, Father argued, inter alia,

that it was in the best interests of the Children to terminate

the guardianship and return the Children to Father's care and

custody, and that there had never been any allegation that he was

an unfit parent or that he was unable to provide Children with a

stable and wholesome home. Father's declaration explained, inter

alia, his consent to the guardianship:

8. When [Guardian] told me about the guardianship papers

in April of 2017, it was presented to me as a way to

make it easier for her to take the children to school

and to their healthcare appointments; I didn't

understand that I was giving up custody and control of

14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

my children; if I had known about power of attorney I

would have just signed those for her[.]

With the Opposition to Termination, Guardian submitted

a l8-page (single-spaced) declaration asserting for the first

time that the guardianship had been necessary because, inter

alia, Father and Mother were unable to properly parent the

Children and provide a stable home, and that both Mother and

Father had alcohol or drug addictions. Guardian did not

contradict Father's statement (above) that the guardianship had

been presented by her as a means to facilitate school and

healthcare matters. Guardian did not dispute Father's averment

that Father was not informed and did not understand that consent

to the guardianship could be viewed as giving up custody and

control of the Children.

The Family Court did not address the substance of the

Motion to Terminate at the initial hearing, and instead appointed

the Fact Finder and set a date for an evidentiary hearing,

addressed that Guardian could file a motion for "de facto

parenting time," which could come into play if the guardianship

were terminated, and established a pretrial and motions schedule.

After the filing of the Petition for Custody, the Motion for

Summary Judgment, the Factfinder Report, and further submissions

of the parties and interim hearings, on November 19, 2019, the

motions came on for hearing in the Guardianship Case.9

Mother's argument in the Motion for Summary Judgment

was that, as there had never been any determination that Father

and Mother were unfit parents, and the guardianship was grounded

solely in their consent, that they had a fundamental right to

terminate the guardianship. In her memorandum in opposition,

Guardian argued that the proper inquiry under HRS § 560:5-210 was

whether the termination of the guardianship was in the Children's

best interests. At the second of two hearings at which this

motion was discussed by Judge Poelman, on October 30, 2019, the

court explained:

9 Matters at issue in the Custody Case came on for hearing at the

same time, but they will be discussed separately.

15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

I just wanted to briefly summarize as far as the

motion for summary judgment, thank you for all the argument

and all your presentations yesterday. I basically took that

under advisement. I didn't rule on the motion itself other

than to say it's possibly a question of fact whether the

parents are fit, and taking the motion in the light most

favorable and the prior declarations, the Court still wanted

to ask for updated declarations after the fact finder's

report from the guardian to establish whether or not there

really is a question of material fact as to whether or not

the parents are fit as parents, and what is left is a

question of fact, then, that will have to go to trial.

The Court does not agree with the initial portion of

the motion for summary judgment that says that the parents

can create a guardianship and terminate the guardianship if

there's a question of fact whether they are fit parents, and

that is and if there is a question of fact. If there's no

question of fact there and if the parents are fit and proper

and stable, then I agree with their position that they have

an absolute right to terminate the guardianship and take

custody again of the children, but if there is a question of

fact as to whether they are fit and stable, then that issue

would need to be tried.

So the Court under [HFCR] Rule 56(f) set deadlines

yesterday for filings of declarations and affidavits in

regard to whether there is a question of fact as to whether

or not the parents are fit or not, and the Court said

yesterday it will take the fact finder's findings into

consideration as part of that motion for summary judgment.

Now, I did review the fact finder's findings, and the

fact finder's opinion was that these parents are fit. 

That's still disputed by the guardian at this point in time. 

We still are in the middle of this motion for summary

judgment question. When I have pending matters before they

go to trial, sometimes it can take a while. I have possible

trial dates, but these might be too soon but if we don't use

these trial dates, which actually don't work because they're

before the continued motion for summary judgment, I'd like

to get on the calender the trial date in the event the

motion for summary judgment is denied and if the Court finds

there is a question of fact to go to trial regarding the

fitness of the parents.

Thus, while making it clear that he was not ruling on

the Motion for Summary Judgment, Judge Poelman indicated four

things: (1) that he rejected Mother's argument that parents can

create and then terminate a guardianship, as a matter of law,

even if there is a genuine issue of material fact as to whether

they are fit parents; (2) he agreed with Mother's argument that

to the extent that if there was no genuine of material fact as to

whether the parents are fit parents, then they have an absolute

right to terminate the guardianship and take custody of the

Children; (3) although the Fact Finder's opinion was that Father

and Mother are fit parents, Guardian disputed their fitness; and

16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(4) pursuant to HFCR Rule 56(f), the court was allowing the

parties to file additional declarations or affidavits on the

issue of the parents' fitness, and would then rule on the Motion

for Summary Judgment. At the prior, October 29, 2019 hearing,

Judge Poelman further indicated that the ruling on summary

judgment would be made viewing the facts in the light most

favorable to the non-moving party, in this case, Guardian.

The matters next came on for hearing on November 19,

2019, before Judge Heely, who asked each of the parties to

address whether they had any objection to her reviewing the

record, including the details of what had transpired at the prior

hearings before Judge Poelman, and then ruling on them. No

objections were raised to proceeding as suggested by Judge Heely. 

At that hearing, Guardian argued that, contrary to Judge

Poelman's characterization of the issue, the termination of the

guardianship should be based on what is in the best interest of

the Children, not on whether or not Father and Mother were fit

parents. Guardian further argued that based on the declarations

submitted, viewed in the light most favorable to Guardian, there

were genuine issues of material fact either as to whether Father

and Mother were fit and proper parents or whether it was in the

best interests of the Children to terminate the guardianship. 

Father and Mother argued that this was a "simple consensual

guardianship" case where they agreed to the Family Court creating

a "de jour guardianship." In context, parents were arguing that

their consent was only effective to give Guardian certain legal

status to help Guardian care for their Children and that they

never consented to a guardianship that would impinge on their

parental rights. Guardian reiterated that the declarations

established that there was a genuine issue of material fact as to

whether Father and Mother were fit and proper parents. Judge

Heely indicated that she would continue the hearing to allow her

time to review the record, including the record of the prior

hearings as well as the declarations that were filed concerning

the summary judgment, and that court would reconvene on

November 27, 2019, for the court's rulings on all pending

matters.

17
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

At the continued hearing on November 27, 2019, the

Family Court reviewed in part the record of the proceedings that

the court had considered, including but not limited to the Fact 

Finder's investigation of the best interest of the Children

pursuant to HRS § 571-46(a)(4) (2018). The Family Court noted in

particular the Fact Finder's opinion that neither Mother nor

Father were unfit parents or lacked stability or wholesomeness. 

The Family Court confirmed that the Motion to Terminate and the

Motion for Summary Judgment were separate and distinct motions. 

The Family Court ruled that there was no genuine issue of

material fact and that Mother was entitled to summary judgment as

a matter of law. The Family Court then indicated that based on

its review of the entirety of the record, the court was granting

the Motion to Terminate. 

On appeal, Guardian argues that the Family Court erred

in granting the Motion for Summary Judgment because there was a

genuine issue of material fact as to whether the termination of

the guardianship was in the best interest(s) of the ward(s), in

this case the Children. Guardian further argues that there was a

genuine issue of material fact as to whether it was in the best

interests of the Children to terminate the guardianship in light

of Guardian's declaration expressing her concerns regarding the

fitness of both Mother and Father. We review these issues de

novo.

As to the parents' fitness, on appeal, Guardian points

to "instances of alcohol intoxication on the part of Father" that

were "detailed" in Guardian's declaration, presumably referencing

the November 5, 2019 declaration in opposition to the Motion for

Summary Judgment, but no record citation was provided. 

Guardian's November 5, 2019 declaration includes 33 numbered

paragraphs, as well as numerous subparagraphs. Paragraphs 6 and

7 of Guardian's declaration repeated hearsay reports concerning

Father "driving under the influence" two times in 2014 and again

in January 2017, two years and ten months prior to the ruling on

the Motion for Summary Judgment. Paragraph 12 states that one of

the Children said something to Guardian's niece — not Guardian —

about an alleged incident in January of 2019 related to a

18
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Breathalyzer device in Father's car. Guardian's November 5, 2019

declaration does not create a genuine issue of material fact as

to Father's unfitness as a parent due to instances of alcohol

intoxication. While the record as a whole, including the

Factfinder's Report, indicates that Father has a history of

problems with alcohol, it also indicates that he was sober, and

Father's history did not rise to the level of unfitness, lack of

stability, or lack of wholesomeness. We note the opportunities

given to provide further additional evidence pursuant to HFCR

Rule 56(f), and we conclude that the Family Court did not err in

concluding Guardian did not raise a genuine issue of material

fact as to Father and Mother's fitness as parents.

There is nothing in the record to indicate that the

Family Court's ruling on the Motion for Summary Judgment was

intended to address factual or legal issues beyond the parents'

fitness. Neither the oral ruling or written Summary Judgment

Order indicate any ruling on Mother's argument concerning her

fundamental constitutional rights as a parent. Guardian does not

argue otherwise on appeal. We decline to express an opinion as

to a question of law that was not ruled on by the Family Court.

As to the Order Terminating Guardianship, Guardian's

only argument on appeal is that the Family Court "applied the

wrong standard, indicating only that the parents were ready and

able to provide a safe, proper home for their children, not

whether it was in their best interests to terminate the

guardianship." This argument is without merit. The Motion to

Terminate specifically asked the Court to determine that it was

in the best interests of the Children to terminate the

guardianship, arguing, inter alia, that the court must consider

the preference granted to parents pursuant to HRS § 560:5-210 and

HRS § 571-46(a)(1) when determining the Children's best

interests. Guardian provides no citation to the record

supporting the argument that the court's ruling on the Motion to

Terminate was not based on the best interests of the Children. 

Guardian makes no specific factual or legal argument on appeal —

except as to the parents' fitness, which has already been

addressed — that it was not in the Children's best interests to

19
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

terminate the guardianship.

Accordingly, we conclude that the Family Court did not

err in entering the Summary Judgment Order. We further conclude

that the Circuit Court did not err or abuse its discretion in

entering the Order Terminating Guardianship.

B. Order Denying Custody

Guardian argues that the Family Court erred in

dismissing the Petition for Custody, purportedly for failure to

state a claim upon which relief can be granted.

As stated above, on October 8, 2019, Guardian filed the

Petition for Custody. In it, Guardian alleged that she is a fit

and proper person to have care, custody and control of the

Children, she can provide the Children with a stable and

wholesome home, and she has had de facto custody of the Children

for an extended period of time. Guardian further alleged, inter

alia, that pursuant to HRS § 571-46(a)(2) and the Hawai#i Supreme

Court's decision in A.A. v. B.B., 139 Hawai#i 102, 384 P.3d 878

(2016), Guardian should be adjudged to be a "de facto custodian"

of the Children and that she should be awarded sole legal and

shared physical custody of the Children, pursuant to a parenting

plan to be proposed by her. Father and Mother raised numerous

arguments in opposition to the Petition for Custody, but the

central argument was that Guardian did not have de facto custody

of the Children, rather she was a long-time babysitter who

offered to help care for the Children during the work week, while

the parents were struggling through their separation and divorce,

and that the legal guardianship was presented to them as a way of

making it easier for her to provide additional support to the

Children, in particular with respect to school and health care

matters.

Before further examining the parties' arguments and the

Family Court's ruling on the Petition for Custody, we consider

the supreme court's decision in A.A., which addresses the

interpretation and application of HRS § 571-46(a)(2), which

permits an award of custody to a person who has had de

facto custody of a child. HRS § 571-46(a) provides in relevant

20
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

part:

§ 571-46 Criteria and procedure in awarding custody

and visitation; best interest of the child. (a) In actions

for divorce, separation, annulment, separate maintenance, or

any other proceeding where there is at issue a dispute as to

the custody of a minor child, the court, during the pendency

of the action, at the final hearing, or any time during the

minority of the child, may make an order for the custody of

the minor child as may seem necessary or proper. In

awarding the custody, the court shall be guided by the

following standards, considerations, and procedures:

(1) Custody should be awarded to either parent or to

both parents according to the best interests of

the child, and the court also may consider

frequent, continuing, and meaningful contact of

each parent with the child unless the court

finds that a parent is unable to act in the best

interest of the child;

(2) Custody may be awarded to persons other than the

father or mother whenever the award serves the

best interest of the child. Any person who has

had de facto custody of the child in a stable

and wholesome home and is a fit and proper

person shall be entitled prima facie to an award

of custody;

(3) If a child is of sufficient age and capacity to

reason, so as to form an intelligent preference,

the child's wishes as to custody shall be

considered and be given due weight by the

court[.]

A.A. involved a same-sex couple, who jointly decided to

adopt and raise a child who was the biological grandchild and

legal adoptive child of B.B. 139 Hawai#i at 104, 384 P.3d at

880. They lived together as a family unit, along with B.B.'s

teenage son, jointly sharing all parental care, duties, custody,

and responsibilities. Id. They jointly planned for A.A. to also

adopt the child, but that did not occur. Id. When they

separated, they entered into a written 50/50 co-parenting

agreement, which B.B. later sought to revoke. Id. A.A.

petitioned for joint custody pursuant to the de facto custody

provision in HRS § 571-46(a)(2). Id.

The supreme court emphasized that the over-arching

consideration in child custody matters is the best interests of

the child, and that the family courts possess broad discretion as

to that determination. Id. at 106, 384 P.3d at 882. The court

noted that pursuant to HRS § 571-46(a)(1), custody "should be"

awarded to either or both parents, according to the best

interests of the child, but that pursuant to the de facto custody

21
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

provision in HRS § 571-46(a)(2), custody "may be" awarded to

someone else, if that award serves the best interests of the

child. 139 Hawai#i at 106, 384 P.3d at 882. In examining HRS

§ 571-46(a)(2), the supreme court stated:

Although "de facto custody" is not defined, we interpret it

to mean sole or shared physical custody in combination with

an assumption of incidents of legal custody enumerated in

HRS § 571-2, which include "the duty to protect, train, and

discipline the minor and to provide the minor with food,

shelter, education, and ordinary medical care." In other

words, de facto custody is consistent with a parental role.

Id. at 107, 384 P.3d at 883.

Later in its opinion, in conjunction with one of the

court's many references to B.B.'s expansive treatment of A.A. as

a co-parent, voluntarily sharing physical custody and parenting

decisions and duties, the supreme court clarified that:

Our decision [regarding whether B.B.'s protected parental

rights would be violated by sharing custody with A.A.] is

based on the circumstances presented by this case. We note

that a parent does not relinquish his or her parental rights

by merely relying on childcare assistance from others. As

stated, de facto custody is not established by mere physical

custody of a child. Nonetheless, we decline to adopt a

bright line rule regarding the extent of a parent's

protected liberty interest as "the constitutional

protections in this area are best 'elaborated with care'" on

a case-by-case basis.

Id. at 114 n.18, 384 P.3d at 890 n.18 (emphasis added).

The supreme court identified the three statutory

factors by which a person may establish a prima facie case of de

facto custody, that the person seeking custody is (1) a fit and

proper person, (2) who has had de facto custody of the child, (3)

in a stable and wholesome home. Id. at 107, 384 P.3d at 883. 

However, the court again noted the family court's ultimate

discretion in determining the custody award based on the best

interests of the child. Id. Due to the insufficiency of the

family court's findings concerning whether A.A. established a

prima facie case, the supreme court "express[ed] no opinion" on

the issue but nevertheless noted that the record was sufficient

to support a finding of de facto custody because B.B. "shared all

parental care, duties, and responsibilities with respect to Child

with A.A. from [early infancy in] October 2011 to October 2013

and then continued to have actual joint custody of Child until

22
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

April 2014, pursuant to the written co-parenting agreement."10

Id. at 107 n.8, 384 P.3d at 883 n.8.

As argued by Guardian, at the October 30, 2019 hearing,

Judge Poelman described Father's opposition to the Petition for

Custody "as a kind of a Rule 12(b)(6) motion saying that there's

a failure to state a . . . claim upon which relief can be granted

. . . ." The judge invited Guardian to file an opposition or

response to that argument prior to the next hearing, which

Guardian did. At the next hearing, held on November 19, 2019,

Father argued to Judge Heely that:

The petition should be denied because there is no de facto

parenting here. There is none of that. She had de jour

guardianship. They have never lived together. They have

never created a parent-like relationship. She's trying to

come in on [a custody case] by claiming because she had

guardianship of the children, she created a de facto

parenting, and under all the facts that is not true, your

Honor. She can't even make that borderline threshold

argument.

In other words, notwithstanding Judge Poelman's

characterization, Father argued that the facts did not support a

finding of de facto parenting. Guardian argued that pursuant to

A.A., Guardian was authorized to assert that she had a de facto

parental relationship with the Children, and that she satisfied

the prima facie criteria, recognizing that making a prima facie

case did not entitle her to custody. Guardian's counsel stated

that Guardian was seeking an evidentiary hearing, but then said

that with respect to the Custody Case, based on Judge Poelman's

determination that Father's opposition was like an HFCR 12(b)(6)

10 As discussed below, in this case, the lack of findings of fact

concerning whether Guardian established a prima facie case of de facto custody

under HRS § 571-46(a)(2), as well as findings and conclusions concerning the

ultimate issue of the best interests of the Children, render the record

insufficient for appellate review of the Order Denying Custody. We express no

opinion, but nevertheless note that there are numerous distinctions between

the case at bar and A.A., and the record tends to support a finding that

Guardian did not have de facto custody of the Children. Here, there is no

evidence in the record that the parents intended to share custody or co-parent

with Guardian. On the contrary, she was the trusted, long-time babysitter who

offered to assist the parents and the Children get through a stressful period

during the marital breakup. As she testified under oath at the initial

guardianship proceeding, the "consensual" guardianship was to facilitate

school and doctor appointments. Parents never agreed or gave any sort of

informed consent to joint custody or a relinquishment or diminution of their

parental rights. There is no evidence that the Children ever considered

Guardian to be a parent, as opposed to a valued caregiver. 

23
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

motion, the court would not need to take evidence to decide the

case.

At the next (and final) hearing, the Family Court

(Judge Heely) stated the court's ruling that the Petition for

Custody was denied. When challenged by Guardian's counsel that

"Judge Poelman ruled this was a 12(b)(6) motion, has to be

decided on the pleadings, not on the facts[,]" the court noted

that it relied on the pleadings, including Father's opposition

asserting that Guardian was not a de facto parent. The Family

Court noted that Father and Mother had been the parents for nine

years plus and they have rights, and the court questioned why

Guardian did not file a petition for custody during the pendency

of the guardianship. Guardian's counsel responded, "She didn't

file it before because she wasn't a de facto parent yet." The

court said "exactly . . . she's not a de facto parent and she --

the Court ruled that she is not a de facto parent . . . ."

While the Family Court orally ruled that Guardian was

not a de facto parent, the court did not enter findings of fact

and conclusions of law supporting that ruling. Indeed, both

Family Court judges seemed to indicate that the court would be

ruling on the Petition for Custody as a matter of law, but it

appears that the Family Court ultimately concluded that Guardian

did not establish the facts necessary for a prima facie case of

de facto custody under HRS § 571-46(a)(2). 

In light of this record, we must conclude that the

record is insufficient for appellate review of the Order Denying

Custody. The Family Court should have, at a minimum, made

findings and conclusions with regard to whether Guardian

satisfied the de facto custody test of HRS § 571-46(a)(2). See

A.A., 139 Hawai#i at 108, 384 P.3d at 884. Further, it appears

that some sort of evidentiary hearing was necessary to make such

findings and conclusions, as we cannot conclude, as a matter of

law, that Guardian cannot petition for custody pursuant to HRS

§ 571-46(a)(2). As it is necessary to remand this case to the

Family Court, we note that even if the Family Court were to find

and conclude that Guardian had de facto custody of the Children

for some period of time, and satisfied the other two statutory

24
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

factors, the establishment of a prima facie entitlement to

custody is not dispositive. The Family Court must make the

ultimate determination as to the best interests of the Children

in granting or denying Guardian's petition, which may need to be

supported by additional findings.

C. The Order Denying Reconsideration

Guardian provides no discernible argument on appeal

that she presented new evidence and/or arguments that were not or

could not have been presented during the earlier adjudicated

motions in the Guardianship Case. See, e.g., Tagupa v. Tagupa,

108 Hawai#i 459, 465, 121 P.3d 924, 930 (App. 2005) ("The purpose

of a motion for reconsideration is to allow the parties to

present new evidence and/or arguments that could not have been

presented during the earlier adjudicated motion." (brackets

omitted)). As we have concluded that the record is insufficient

to review the Family Court's Order Denying Custody, we need not

reach the issue of whether the Family Court abused its discretion

in denying reconsideration of that order. 

V. CONCLUSION

For these reasons, the Family Court's December 13, 2019

Order Terminating Guardianship is affirmed. The Family Court's

December 13, 2019 Order Denying Custody is vacated, and the

Custody Case is remanded to the Family Court for further

proceedings consistent with this Memorandum Opinion.

DATED: Honolulu, Hawai#i, December 5, 2022.

On the brief:

Benard M. Herren,

Valerie B. McKelvey

(Cain & Herren, ALC), and

Brianne L.O. Wong Leong

(Wong Leong Cuccia, LLLC)

 for Petitioner-Appellant.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

25