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NO. CAAP-22-0000427 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

IN THE INTEREST OF AA 

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT 

(FC-S NO. 16-00249) 

MEMORANDUM OPINION 

(By: Leonard, Presiding Judge, McCullen and Chan, JJ.) 

Respondent-Appellant Father appeals from the Family 

Court of the First Circuit's June 24, 2022 order denying his 

motion for reconsideration.1 On appeal, Father alleges that the 

family court violated his due process rights.2 Based on the 

1 The Honorable Andrew T. Park presided.

2 Father also contends that the family court committed structural error 

by failing to appoint counsel for the unknown natural father. See In re JH, 

152 Hawai‘i 373, 380, 526 P.3d 350, 357 (2023) (clarifying that the family 

court may discharge court-appointed counsel when a parent inexcusably fails 

to appear in court, stating that, absent a client, "what's an attorney to 

do?"). Based on our decision in this case, we need not address this issue.

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000427

24-MAY-2023

08:06 AM

Dkt. 97 MO
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discussion below, we affirm the family court's denial of 

Father's motion for reconsideration for lack of jurisdiction.

I. BACKGROUND

A. Termination Of Parental Rights

In November 2016, Mother gave birth to AA and 

requested he be placed in foster care. Upon discharge from the 

hospital, Petitioner-Appellee Department of Human Services (DHS) 

placed AA with Intervenors-Appellees resource caregivers 

(Caregivers).

On December 7, 2016, DHS filed a petition for 

temporary foster custody of AA and initiated the underlying case 

(Underlying Case). AA entered foster care in December 2016; AA 

was less than a month old. About a month later, the family 

court appointed Court Appointed Special Advocates Program (CASA) 

as AA's guardian ad litem.

Mother failed to provide DHS with sufficient 

information to identify or locate the then-unknown natural 

father of AA. As a result, the family court permitted service 

upon unknown natural father by publication. Following service 

by publication, DHS moved to terminate Mother's and unknown 

natural father's parental rights.
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On February 27, 2018, the family court terminated 

Mother's and unknown natural father's parental rights. 

B. First Motion To Intervene And Appeal 

 On October 23, 2018, DHS filed a motion for immediate 

review, explaining that Father contacted DHS claiming to be AA's 

biological father and that AA was in the process of being 

adopted by Caregivers. A genetic test confirmed that Father was 

the biological father of AA. 

 On February 11, 2019, Father moved to intervene 

(Father's Motion to Intervene); AA was a little over two years 

old.3

The family court granted the motion, but later set 

aside that order because Father was still in default. The 

family court denied Father's motion to set aside the default, 

and Father appealed. This court explained that Father could not 

proceed with a motion to intervene until his default was set 

aside. In re AA, 148 Hawai‘i 278, 472 P.3d 1123, No. CAAP-19-

0000711, 2020 WL 5796177 at *13 (App. Sept. 29, 2020) (mem.). 

 On certiorari review, the Hawai‘i Supreme Court held 

that the family court should have analyzed Father's motion to 

intervene under Hawai‘i Family Court Rules (HFCR) Rule 24 without 

requiring him first to set aside the default judgment, and 

3 Father's Motion to Intervene superseded a January 28, 2019 motion to 

intervene. 
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remanded the case for further proceedings. In re AA, 150 Hawai‘i 

270, 284-89, 500 P.3d 455, 469-74 (2021). The supreme court, 

however, upheld the family court's (1) service of Father via 

publication and (2) denial of Father's request to set aside 

default and termination of Father's parental rights by default. 

150 Hawai‘i at 284-89, 500 P.3d at 469-74. 

C. Renewed Motion To Intervene 

 On February 17, 2022, Father again moved to intervene 

(Renewed Motion to Intervene); AA was a little over five years 

old.

Father argued that he met the standards set forth in 

HFCR Rule 24(a)(2) for mandatory intervention and HFCR 

Rule 24(b)(1) for permissive intervention. Father relied on In 

re Doe, 109 Hawai‘i 399, 126 P.3d 1086 (2006) and Hawaii Revised 

Statutes (HRS) § 587A-33(d) (2018).4

 On March 14, 2022, the family court heard and orally 

denied Father's Renewed Motion to Intervene. 

 On March 22, 2022, the family court granted AA's 

adoption to Caregivers. 

4 HRS § 587A-33(d) provides: "A family member may be permitted 

visitation with the child at the discretion of the permanent custodian. The 

court may review the exercise of such discretion and may order that a family 

member be permitted such visitation as is in the best interests of the 

child."
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On April 25, 2022, the family court entered the order 

denying Father's Renewed Motion to Intervene.

On April 27, 2022, the family court revoked DHS's 

permanent custody and terminated its jurisdiction over the case 

in light of AA's adoption.

On May 5, 2022, Father moved for reconsideration of 

the denial of his Renewed Motion to Intervene (Motion for 

Reconsideration).

On June 7, 2022, the family court denied Father's 

Motion for Reconsideration explaining that it lacked 

jurisdiction over the case, and even if it had jurisdiction, 

Father presented no new argument: 

Having taken judicial notice of the records, file, 

and proceeding herein; having had the chance now in 

addition to the pleadings filed respectively by movant, 

CASA, and the [Caregivers] on May 5, 16th, and 25th; and 

now having had opportunity to hear and consider additional 

oral argument, for reasons contained in the two opposition 

memoranda filed by the CASA program and the [Caregivers], 

as joined by [DHS], the Court respectfully denies the 

motion for reconsideration filed by [Father].

As an additional factor, as was pointed out in the 

CASA's memorandum, this Court did terminate its own 

jurisdiction of the case upon the granting of the adoption, 

which I suppose is the first hurdle. Even if this Court 

could have granted the reconsideration based on some 

vestigial or lingering jurisdiction that it had, the Court 

finds that there's no new argument or point of law 

presented in the reconsideration motion and that the Court 

did in fact correctly apply the law at the initial hearing 

on the motion filed by [Father] that . . . reconsideration 

was sought for, I should say.

On June 24, 2022, the family court entered the Order Denying the 

Motion for Reconsideration. Father timely appealed.
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II. STANDARD OF REVIEW 

"It is axiomatic that mootness is an issue of subject 

matter jurisdiction. Whether a court possesses subject matter 

jurisdiction is a question of law reviewable de novo." Hamilton 

ex rel. Lethem v. Lethem, 119 Hawai‘i 1, 4-5, 193 P.3d 839, 842-

43 (2008) (internal quotation marks omitted) (quoting 

Kaho‘ohanohano v. Dep't of Hum. Servs., 117 Hawai‘i 262, 281, 178 

P.3d 538, 557 (2008)). 

 "When reviewing a case where the circuit court lacked 

subject matter jurisdiction, the appellate court retains 

jurisdiction, not on the merits, but for the purpose of 

correcting the error in jurisdiction." Kaaukai v. Cnty. of 

Maui, 126 Hawai‘i 124, 267 P.3d 708, No. 29387, 2012 WL 149871 at 

*5 (App. Jan. 18, 2012) (SDO) (brackets omitted) (quoting Koga 

Eng'g & Constr., Inc. v. State, 122 Hawai‘i 60, 84, 222 P.3d 979, 

1003 (2010)). 

III. DISCUSSION 

In his points of error, Father focuses on the denial 

of his Renewed Motion to Intervene (as opposed to the denial of 

his Motion for Reconsideration), contending that the family 

court violated his due process rights. As he did below, Father 

argues that he met the requirements for mandatory intervention 
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under HFCR Rule 24(a)(2) and permissive intervention under HFCR 

Rule 24(b)(1). 

In his Renewed Motion to Intervene, Father requested 

"an assessment of Father for reunification/visitation with the 

minor child and notification to all interested parties in 

preserving Father's rights in all cases." 

But reunification was not at issue. By declining to 

set aside Father's default and termination of parental rights by 

default, the Hawai‘i Supreme Court's decision in In re AA 

affirmed the family court's termination of Mother's and Father's 

parental rights to AA and award of permanent custody of AA to 

DHS. See In re AA, 150 Hawai‘i at 285-86, 500 P.3d at 470-71. 

In other words, In re AA ended Father's legal challenges to the 

family court's termination of parental rights and cleared the 

path for Caregivers to adopt AA. HRS § 578-2(c)(1)(K) (2018) 

(providing that an adoption may occur without the consent of 

"[a] parent whose parental and custodial duties and rights have 

been divested by an award of permanent custody pursuant to 

section 587A-33"). 

Father's remaining right was visitation with AA under 

HRS § 587A-33(d). But, for purposes of this appeal, even if 

Father's Renewed Motion to Intervene met the requirements of 

HFCR 24(a)(2) or (b)(1), AA's adoption about two months later 

extinguished Father's residual interest in visitation. In re 
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Doe, 109 Hawai‘i at 410, 126 P.3d at 1097 (explaining that "such 

[HRS § 587A-33(d)] rights and interests terminate on the 

condition the children are adopted or reach the age of 

eighteen"). 

Thus, any challenge to the family court's denial of 

Father's Renewed Motion to Intervene was rendered moot upon AA's 

adoption. 

As for the denial of Father's Motion for 

Reconsideration, AA's adoption 45 days earlier terminated the 

family court's jurisdiction over the Underlying Case because AA 

was no longer subject to harm. HRS § 587A-5 (2018) (providing 

that a family court has jurisdiction over any child found within 

the State of Hawai‘i that "is subject to imminent harm, has been 

harmed, or is subject to threatened harm by the acts or 

omissions of the child's family"); HRS § 587A-4 (2018) (defining 

family, in relevant part, as the legal parent of a child); HRS 

§ 578-16(b) (2018) (providing in relevant part that "[t]he 

former legal parent or parents of an adopted individual and any 

other former legal kindred shall not be considered to be related 

to the individual"). The family court recognized this and 

entered an order terminating the Underlying Case on April 27, 

2022. 
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Thus, the family court had no jurisdiction over

Father's May 5, 2022 Motion for Reconsideration.

IV. CONCLUSION

Therefore, we affirm the family court's June 24, 2022 

order denying Father's Motion for Reconsideration for lack of 

jurisdiction.

DATED: Honolulu, Hawai‘i, May 24, 2023.

On the briefs:

Georgia K. McMillan,

For Respondent-Appellant.

Jonathan M. Fujiyama,

Julio C. Herrera,

Deputy Attorneys General,

for Petitioner-Appellee.

Francis T. O'Brien,

for Intervenors-Appellees.

Shelby N. Ferrer,

for Court Appointed Special 

Advocates Program.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Sonja M.P. McCullen 

Associate Judge

/s/ Derrick H.M. Chan

Associate Judge